State v. Bond , 796 Utah Adv. Rep. 4 ( 2015 )

This opinion is subject to revision before
publication in the Pacific Reporter
2015 UT 88IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
MARTIN CAMERON BOND,
Appellant.
No. 20130361
Filed September 30, 2015
Fourth District, American Fork
The Honorable Thomas Low
No. 101101667
Attorneys:
Sean D. Reyes, Att’y Gen., John J. Nielsen, Asst. Att’y Gen.,
Salt Lake City, for appellee
Jennifer Gowans Vandenberg, Park City, for appellant
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
and JUSTICE DURHAM joined.
JUSTICE PARRISH sat for oral argument. Due to her resignation from
this court, however, she did not participate herein.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶ 1 A jury convicted Martin Bond of several heinous crimes,
including aggravated kidnapping and aggravated murder.
Mr. Bond challenges his convictions on three grounds. First, he
argues the prosecutor committed misconduct by calling Benjamin
Rettig, Mr. Bond’s codefendant, to testify when Mr. Rettig had
indicated an intention to invoke his Fifth Amendment privilege
against self-incrimination and, therefore, the trial court abused its
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discretion in denying his motion for a mistrial. 1 Second, he
contends the prosecutor violated his rights under the
Confrontation Clause by using leading questions in questioning
Mr. Rettig. Third, he asserts his lawyers were ineffective for
failing to move to merge the conviction for aggravated
kidnapping with the conviction for aggravated murder.
¶ 2 We reject each ground and affirm Mr. Bond’s
convictions. With respect to the first ground, Mr. Bond failed to
establish that the prosecutor committed misconduct in calling
Mr. Rettig to the stand. Consequently, the trial court did not abuse
its discretion in denying his motion for a mistrial. As to the
second ground, we take this opportunity to clear up a point of
significant confusion in our case law and expressly hold that the
burden of demonstrating prejudice for an unpreserved federal
constitutional claim rests with the defendant on appeal. And
because Mr. Bond did not demonstrate prejudice from the
prosecutor’s leading questions, he failed to meet his burden.
Finally, Mr. Bond’s third ground—that trial counsel were deficient
for failing to move for merger of the aggravated kidnapping and
aggravated murder conviction—fails because such a motion
would have been futile.
BACKGROUND
¶ 3 In 2009, Mr. Bond and Mr. Rettig formed a plan to steal
guns from the home of Mr. Bond’s family friend, Kay Mortensen.2
On November 16, 2009, the pair drove from Vernal to
Mr. Mortensen’s home in Payson carrying zip ties, latex gloves,
and a .40 caliber handgun. When they arrived at the home,
Mr. Mortensen answered the door and, recognizing Mr. Bond,
1 Mr. Rettig pled guilty to aggravated murder and aggravated
kidnapping for his role in the crimes. He now challenges his
guilty pleas in a separate appeal currently pending before this
court. State v. Rettig, no. 20131024. Mr. Rettig’s appeal does not
affect our disposition of Mr. Bond’s case.
2 “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly. We
present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d
346 (citations omitted) (internal quotation marks omitted).
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Opinion of the Court
invited both men into his home. According to Mr. Bond,
Mr. Rettig then threatened Mr. Mortensen with the handgun, zip-
tied his wrists, and demanded that Mr. Mortensen tell them
where the guns were kept. Mr. Mortensen showed the men to a
locked bunker in the backyard.
¶ 4 Mr. Bond and Mr. Rettig then led Mr. Mortensen back
inside and up the stairs to the bathroom. Mr. Mortensen’s ankles
were zip-tied together and he was forced to kneel over the
bathtub. One of the men went to the kitchen downstairs and
retrieved a butcher knife, which was then used to slit
Mr. Mortensen’s throat and stab him through the back of the neck,
killing him.
¶ 5 Almost immediately after the murder, Mr. Mortensen’s
son and daughter-in-law, Roger and Pamela Mortensen, arrived at
the home. Mr. Bond and Mr. Rettig forced them into the living
room and bound their wrists and ankles with zip ties. Mr. Bond
threatened to “come after” the couple’s family if they revealed the
men’s identity to the police. Mr. Bond and Mr. Rettig left with
approximately twenty stolen guns. The couple freed themselves
from the zip ties, called the police, and discovered
Mr. Mortensen’s body upstairs.
¶ 6 After leaving the house, Mr. Bond and Mr. Rettig
returned to Vernal and parted ways. Mr. Bond kept all of the
stolen guns. He stored some in his home, sold others, and buried
the remaining weapons in a local park.
¶ 7 Approximately one year after the crime, Mr. Bond’s ex-
wife contacted the Utah County Sheriff’s Office. She told police
that Mr. Bond had confessed his role in the robbery and murder of
Mr. Mortensen and had enlisted her help to bury some of the
stolen guns. Police obtained a warrant to search Mr. Bond’s home.
While executing the warrant, police interviewed Mr. Bond and
found several of the stolen guns. After the police confronted
Mr. Bond with the guns, he admitted his involvement, implicated
Mr. Rettig, and led police to a park where the remaining guns
were buried. Police then arrested Mr. Bond and Mr. Rettig.
¶ 8 Mr. Bond gave several very different accounts of the
robbery and murder before trial. He told his ex-wife that he held
the handgun while Mr. Rettig murdered Mr. Mortensen with the
knife. When police searched his home, Mr. Bond initially denied
any involvement in the crime. But after police confronted him
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with the stolen guns found in his home, Mr. Bond related a story
similar to the one he told his ex-wife—that Mr. Rettig had killed
Mr. Mortensen. And in subsequent police interviews, Mr. Bond
continued to assert that Mr. Rettig had stabbed and killed
Mr. Mortensen. Then, while in prison, Mr. Bond passed notes to
another inmate in which he claimed that he had killed
Mr. Mortensen but that Mr. Rettig forced him to do so by
threatening him with the gun.
¶ 9 The State charged Mr. Bond with one count of
aggravated murder, three counts of aggravated kidnapping, one
count of aggravated burglary, and one count of aggravated
robbery. In order to avoid the possibility of the death penalty,
Mr. Bond made an agreement with the State that he would be
sentenced to life without the possibility of parole if the jury
convicted him of aggravated murder.
¶ 10 Prior to Mr. Bond’s trial, Mr. Rettig pled guilty to
aggravated murder and aggravated kidnapping. He also agreed
to testify against Mr. Bond in exchange for a favorable sentencing
recommendation. However, when called to the stand in
Mr. Bond’s trial, Mr. Rettig refused to answer certain questions,
citing a fear of federal firearms prosecution. The State granted
Mr. Rettig immunity to testify, and the court permitted the
prosecution to ask Mr. Rettig leading questions in front of the jury
regarding the crimes. Mr. Rettig answered some questions but
then repeatedly invoked his Fifth Amendment privilege against
self-incrimination and refused to testify. Mr. Bond declined to
cross-examine Mr. Rettig, insisting that questioning Mr. Rettig
was not permissible given the invocation of privilege. Mr. Bond
later moved for a mistrial based on the State’s calling Mr. Rettig
and forcing him to invoke the privilege before the jury. The trial
court denied the motion.
¶ 11 The jury convicted Mr. Bond on all counts. He was
sentenced to life without the possibility of parole for aggravated
murder, and he received substantial sentences for the aggravated
kidnapping, burglary, and robbery charges. Mr. Bond timely
appealed. We have jurisdiction under Utah Code section 78A-3-
102(3)(i).
STANDARDS OF REVIEW
¶ 12 Mr. Bond’s three challenges to his convictions implicate
different standards of review.
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Opinion of the Court
¶ 13 First, Mr. Bond challenges the trial court’s denial of his
motion for mistrial based on prosecutorial misconduct. We review
the trial court’s denial of Mr. Bond’s motion for a mistrial for an
abuse of discretion. See State v. Harris, 2004 UT 103, ¶ 21,
104 P.3d 1250; cf. State v. Bisner, 2001 UT 99, ¶ 31, 37 P.3d 1073(applying an abuse of discretion standard to evaluate a motion for
a new trial based on prosecutorial misconduct).
¶ 14 Second, Mr. Bond claims a violation of his rights under
the Confrontation Clause of the United States Constitution.
Mr. Bond acknowledges this claim is unpreserved and thus raises
it under the ineffective assistance of counsel and plain error
doctrines. For ineffective assistance of counsel, Mr. Bond must
satisfy the two-part Strickland test, showing “first, that his counsel
rendered a deficient performance in some demonstrable manner,
which performance fell below an objective standard of reasonable
professional judgment and, second, that counsel’s performance
prejudiced the defendant.” Archuleta v. Galetka, 2011 UT 73, ¶ 38,
267 P.3d 232.
¶ 15 For plain error, Mr. Bond must demonstrate “(i) [a]n
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful, i.e., absent the error, there is a
reasonable likelihood of a more favorable outcome for the
appellant.” State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).
Mr. Bond and the State dispute how to apply the prejudice part of
the plain error doctrine in his case. Mr. Bond contends that when
prosecutorial misconduct amounts to a constitutional violation,
the prejudice burden shifts to the State to demonstrate that any
error was harmless beyond a reasonable doubt, even where a
claim is unpreserved. The State argues that the burden does not
shift for unpreserved challenges. We hold that for an unpreserved
federal constitutional claim, the defendant bears the burden to
demonstrate that any error was harmful. See infra ¶¶ 36–46.
¶ 16 Third, Mr. Bond alleges that counsel rendered ineffective
assistance for failing to move to merge his conviction for
aggravated kidnapping with his conviction for aggravated
murder. We review this claim under the Supreme Court’s
Strickland test, which has been described above. Supra ¶ 14.
ANALYSIS
¶ 17 We address each of Mr. Bond’s arguments in turn. We
first consider his claim of prosecutorial misconduct. We then turn
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to his argument under the Confrontation Clause. Finally, we
address his claim based on the merger doctrine. We conclude that
each of Mr. Bond’s arguments fails, and we accordingly affirm his
convictions.
I. THE TRIAL COURT DID NOT ABUSE ITS
DISCRETION IN DENYING MR. BOND’S
MOTION FOR MISTRIAL
¶ 18 Prior to Mr. Bond’s trial, Mr. Rettig pled guilty to
aggravated kidnapping and aggravated murder for his
participation in the crime. During trial, the prosecutor called
Mr. Rettig as a witness against Mr. Bond. On the first day of
questioning, Mr. Rettig answered some questions, admitting he
had planned to meet up with Mr. Bond on the day of the murder.
But when the prosecutor asked what happened after Mr. Rettig
and Mr. Bond met, Mr. Rettig refused to answer the question or to
testify further. Outside the presence of the jury, the trial court
advised Mr. Rettig that he had already waived his right against
self-incrimination and was under subpoena to testify. The court
ordered Mr. Rettig to testify. He refused and was dismissed as a
witness.
¶ 19 The next day, the prosecutor requested that Mr. Rettig be
called again and indicated that the State would grant him use
immunity. Defense counsel, as well as Mr. Rettig’s own attorney,
appear to have fairly protested, arguing that use immunity would
not protect Mr. Rettig from possible federal prosecution.
Mr. Rettig’s attorney apparently informed the trial court that
Mr. Rettig intended to invoke his Fifth Amendment privilege
against self-incrimination despite the promise of immunity. The
court granted the prosecutor’s request to call Mr. Rettig, but
proceeded with initial questioning outside the presence of the
jury. On the stand, Mr. Rettig answered the State’s initial
questions. Because Mr. Rettig was consistently answering, the
court brought the jury back into the courtroom and allowed
questioning to continue in its presence.
¶ 20 The trial court also granted the prosecution leave to treat
Mr. Rettig as a hostile witness and pose leading questions.
Mr. Rettig responded to a number of the prosecutor’s initial
leading questions. But when the prosecutor asked more detailed
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Opinion of the Court
questions about the crimes, Mr. Rettig again refused to answer
and cited his Fifth Amendment privilege.3
¶ 21 Shortly afterwards, and outside of the jury’s and
Mr. Rettig’s presence, Mr. Bond moved for mistrial based on
Mr. Rettig’s invocation of his Fifth Amendment privilege before
the jury. He alleged that the prosecutor had improperly placed
Mr. Rettig on the stand “for the purpose of impressing upon the
jury the fact that the privilege [was] being claimed.” The trial
court denied the motion, ruling that the immunity agreement was
“a change in the playing field . . . that justified re-inquiring with
Mr. Rettig as to his status and his willingness to testify.” The
prosecutor also offered to strike the leading questions, but the
court declined to strike them, reasoning that the questions
themselves were not actually evidence. Instead, on agreement of
the parties, the court offered a curative instruction to the jury
prohibiting it from considering the claim of privilege.
¶ 22 On appeal, Mr. Bond challenges the trial court’s denial of
his motion for mistrial based on prosecutorial misconduct. He
argues that it was improper for the prosecutor to call Mr. Rettig
knowing that he would invoke his Fifth Amendment privilege,
and that the court therefore erred in denying his motion for
mistrial. 4
3 The questions that Mr. Rettig refused to answer are the
subject of Mr. Bond’s Confrontation Clause challenge, and we
discuss the substance of the questions in greater detail in our
analysis of that claim. See infra Part II.
4 In arguing that the prosecutor’s misconduct in calling
Mr. Rettig led to a Confrontation Clause violation, Mr. Bond
conflates his Fifth Amendment invocation and Confrontation
Clause claims. But these are two wholly distinct allegations—one
is a claim of improper presentation to the jury of a witness’
invocation of a privilege, and the other is a claim of violation of
the right to confront the witness. Moreover, as Mr. Bond’s
appellate counsel candidly acknowledges, only the invocation
claim—not the Confrontation Clause allegation—was preserved.
Mr. Bond did not argue, and the trial court did not consider, any
Sixth Amendment concerns arising from the prosecutor’s leading
questions. Because the claims are based on different allegations,
and because we review preserved and unpreserved claims under
(cont.)
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¶ 23 As we noted above, “[o]n appeal from a denial of a
motion for mistrial based on prosecutorial misconduct, because
the trial court is in the best position to determine an alleged
error’s impact on the proceeedings, we will not reverse the trial
court’s ruling absent an abuse of discretion.” State v. Hay, 859 P.2d
1, 6 (Utah 1993). With this standard in mind, we first ask whether
the prosecutor’s actions constituted misconduct. Id. at 6–7. 5 If
there was misconduct, we then proceed to ask whether the
misconduct influenced the verdict. Id. at 7–8. 6 Here, we conclude
that the trial court correctly found that the prosecutor did not
commit misconduct by calling Mr. Rettig and therefore did not
abuse its discretion in denying the motion for mistrial.
¶ 24 A prosecutor may commit misconduct by “call[ing] to
the attention of the jurors matters they would not be justified in
different standards, we analyze Mr. Bond’s Confrontation Clause
argument separately. See State v. Johnson, 774 P.2d 1141, 1144–45
(Utah 1989) (indicating that claims must be based on distinct and
specific objections in order to be preserved).
5 This analysis presupposes the existence of a timely and
appropriate objection to the alleged misconduct and, therefore,
that the issue was preserved for appeal. Here, the State makes no
suggestion that Mr. Bond failed to adequately preserve his Fifth
Amendment challenge. Consequently, nothing in this opinion
should be interpreted as suggesting the existence of, or endorsing,
“a standalone basis for direct review of the actions of
prosecutors.” State v. Larrabee, 2013 UT 70, ¶ 65, 321 P.3d 1136(Lee, J., dissenting).
6 When evaluating the denial of a mistrial motion based on
alleged prosecutorial misconduct, we treat both of these inquiries
under the heading of a single abuse of discretion standard. See
State v. Hay, 859 P.2d 1, 6–8 (Utah 1993). Nonetheless, we
recognize that the trial court makes two distinct determinations
when presented with an allegation of prosecutorial misconduct—
first evaluating whether there was misconduct and then
considering any resulting prejudice. State v. Speer, 750 P.2d 186,
190 (Utah 1988). It is this second part of the analysis that requires
the court’s exercise of sound discretion. Id. Our review of the trial
court’s ruling therefore follows this same bifurcated analysis that
trial courts do and should employ.
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Opinion of the Court
considering in determining their verdict.” State v. Tillman, 750
P.2d 546, 555 (Utah 1987). Jurors are not to consider a valid
invocation of a Fifth Amendment privilege in determining their
verdict because “the exercise of the privilege is not evidence to be
used . . . by any party.” State v. Travis, 541 P.2d 797, 799 (Utah
1975). Thus, a prosecutor who calls a witness to testify in a
“planned or deliberate attempt[]. . . to make capital out of [the]
witness[‘] refusals to testify” commits misconduct. Namet v. United
States, 373 U.S. 179, 189 (1963).
¶ 25 Nevertheless, a prosecutor does not invariably commit
misconduct by calling a witness who has declared an intention to
remain silent. Though a prosecutor may not call a witness simply
to “impress[] upon the jury . . . the claim of privilege,” there are
legitimate reasons to call a witness who has indicated she will
invoke the privilege to remain silent. State v. White, 671 P.2d 191,
193 (Utah 1983) (emphasis omitted). For example, a prosecutor
“may be required” to call such a witness in order “to demonstrate
[the witness’] unavailability.” Id.; see also State v. Schreuder, 712
P.2d 264, 274 (Utah 1985) (explaining that it was not misconduct
when an attorney “merely called [a witness] to testify under oath
before the trial judge about her intentions regarding the
privilege”). Further, a witness who refuses to testify to one matter
may willingly testify to other matters. Namet, 373 U.S. at 188; see
also United States v. Coppola, 479 F.2d 1153, 1160 (10th Cir. 1973)
(acknowledging that the State may “call a witness so as to give
that witness an opportunity to answer particular questions”).
Finally, a witness who declares an intention to remain silent may
not be able to validly claim such a privilege. See Roberts v. United
States, 445 U.S. 552, 560 n.7 (1980) (“A witness may not employ the
privilege to avoid giving testimony that he simply would prefer
not to give.”). Thus, a “prosecutor need not accept at face value
every asserted claim of privilege, no matter how frivolous,”
Namet, 373 U.S. at 188, but may call a witness if the prosecutor
“reasonably assume[s] that the possibility of being cited for
contempt by the Court would force [the witness] to testify,”
United States v. Harper, 579 F.2d 1235, 1240 (10th Cir. 1978). In sum,
a prosecutor does not commit misconduct if he has at least “a
colorable—albeit ultimately invalid—argument” that he is calling
the witness for a proper purpose and not “seeking to get
evidentiary value from the questions and the claims of privilege.”
United States v. Torrez-Ortega, 184 F.3d 1128, 1137 (10th Cir. 1999)
(internal quotation marks omitted).
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¶ 26 Here, the prosecutor had far more than a colorable
argument that Mr. Rettig could not validly claim the privilege
against self-incrimination because the prosecution granted him
use immunity. The Fifth Amendment privilege applies in both
state and federal prosecutions, and therefore a grant of immunity
that provides protection in only one jurisdiction but not the other
would often be wholly unsatisfactory to the witness. United States
v. Balsys, 524 U.S. 666, 682 (1998) (calling it “intolerable to allow a
prosecutor in one or the other jurisdiction to eliminate the
privilege by offering immunity less complete than the privilege’s
dual jurisdictional reach”). Therefore, if a State compels an
individual to testify through a grant of immunity, the federal
government is prohibited from then using that testimony or its
fruits against the witness in a federal prosecution. Murphy v.
Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52, 79 (1964), abrogated
by Balsys, 524 U.S. at 683–84; see also Balsys, 524 U.S. at 682 (“The
only condition on the government when it decides to offer
immunity in place of the privilege to stay silent is the requirement
to provide an immunity as broad as the privilege itself.”). 7
7 If, however, immunity is granted through voluntary
cooperation between the State and the witness—rather than as a
means for the State to compel testimony—the immunity is
governed by contract law and extends only as far as the grant
provides. See United States v. Brown, 400 F.3d 1242, 1255–56 (10th
Cir. 2005) (holding that statements made by a witness who
received immunity from a state prosecutor for his cooperation
could be used against him in a federal prosecution because the
immunity agreement explicitly denied federal protection); United
States v. Thompson, 25 F.3d 1558, 1562 (11th Cir. 1994) (applying
“basic contract principles” to a grant of informal immunity).
Though Mr. Rettig’s immunity grant is not in the record, it seems
clear to the court that, particularly given Mr. Rettig’s refusals, the
grant was a means to compel Mr. Rettig to testify and not the
result of cooperation with the State. Cf. UTAH CODE § 77-22b-
1(1)(a) (Utah immunity statute providing that “[a] witness who
refuses, or is likely to refuse, on the basis of the witness’s privilege
against self-incrimination to testify . . . may be compelled to testify
. . . after being granted use immunity”).
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¶ 27 Thus, the immunity granted to Mr. Rettig by the State
applied to both state and federal prosecutions, and the
prosecutor’s argument that Mr. Rettig could not validly claim the
privilege was therefore not only colorable, but very likely correct.
As the trial court acknowledged, the grant of immunity
constituted a “change in the playing field . . . that justified re-
inquiring with Mr. Rettig as to his status and his willingness to
testify.” Therefore, notwithstanding Mr. Rettig’s stated intention
to invoke his Fifth Amendment privilege, the prosecutor had a
sufficient legal basis for calling him to testify.
¶ 28 Furthermore, we find no indication that the prosecutor
called Mr. Rettig simply to “impress[] upon the jury . . . the claim
of privilege.” White, 671 P.2d at 193. In fact, the prosecutor
appeared to make significant efforts to avoid Mr. Rettig’s
invocation of his Fifth Amendment privilege. For example, during
a sidebar after Mr. Rettig initially refused to testify, the prosecutor
was the first to suggest that Mr. Rettig’s “Fifth Amendment rights
are not something that’s relevant for the jury to consider.” And
before calling Mr. Rettig to the stand for a second time, the
prosecutor granted him use immunity. The most obvious purpose
for such a grant would be to elicit actual testimony from
Mr. Rettig. Moreover, after Mr. Rettig cited possible federal
prosecution for gun possession as his basis for remaining silent,
the prosecutor offered to limit further questions, saying, “Would
you prefer I not talk about questions with regards to [the stolen]
guns?” Lastly, the prosecutor offered to strike the leading
questions that Mr. Rettig refused to answer and ultimately agreed
to a limiting instruction prohibiting the jury from considering the
invocation of privilege.
¶ 29 In sum, we find no indication that the prosecutor’s
calling of Mr. Rettig was a “planned or deliberate attempt[] . . . to
make capital out of [his] refusals to testify.” Namet, 373 U.S. at 189.
Thus, Mr. Bond has not established misconduct on the part of the
prosecutor for calling Mr. Rettig to testify. Moreover, Mr. Bond
has failed to argue—let alone prove—that he was prejudiced by
Mr. Rettig’s invocation of the privilege. 8 We therefore conclude
8 In any event, the State makes persuasive arguments that
there was no prejudice. First, Mr. Rettig’s invocation of privilege
was an isolated incident in the context of a long trial, and the
(cont.)
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that the trial court did not abuse its discretion in denying his
motion for mistrial.
II. MR. BOND HAS NOT ESTABLISHED A
CONFRONTATION CLAUSE VIOLATION UNDER
EITHER A PLAIN ERROR OR AN INEFFECTIVE
ASSISTANCE OF COUNSEL ANALYSIS
¶ 30 Mr. Bond next argues that the prosecution’s questioning
of Mr. Rettig amounted to a violation of the Confrontation Clause
of the Sixth Amendment to the United States Constitution because
Mr. Bond was denied the right to effectively cross-examine
statements made against him. 9 However, Mr. Bond did not
preserve this argument in the trial court. Therefore, our
disposition turns on whether the trial court plainly erred in
allowing the prosecution to question Mr. Rettig in this manner or
whether Mr. Bond’s lawyers rendered ineffective assistance in
failing to move for a mistrial based on the Confrontation Clause.
After first setting forth Mr. Bond’s argument in greater detail, we
explain below why his Confrontation Clause argument fails.
¶ 31 At trial, Mr. Bond raised a compulsion defense, arguing
that he and Mr. Rettig had agreed to the scheme to steal the guns
but that during the robbery Mr. Rettig changed course and forced
Mr. Bond at gunpoint to kill Mr. Mortensen with the knife. As
discussed above, the prosecutor called Mr. Rettig to testify as a
prosecutor did not rely on or refer to the incident again. Thus, the
court’s curative instruction to the jury was likely sufficient to
mitigate any damage potentially done. See State v. Harmon, 956
P.2d 262, 271–74 (Utah 1998) (holding that a curative instruction
was sufficient when the alleged error was an isolated incident and
the prosecutor did not refer to it again). Second, the State
presented extensive circumstantial evidence that both
incriminated Mr. Bond and undermined his compulsion defense.
In short, we are not persuaded that this brief episode so
influenced the jury that a mistrial would be warranted. See State v.
Cardall, 1999 UT 51, ¶ 18, 982 P.2d 79 (“If the court concludes that
the jury was probably not prejudiced by an incident, [the] motion
for a mistrial should be denied.”).
9 Mr. Bond raises his confrontation argument under only the
federal constitution. Accordingly, we do not address his claim
under article 1, section 12 of the Utah Constitution.
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witness against Mr. Bond. Because of Mr. Rettig’s hesitancy in
answering questions, the trial court granted the prosecutor leave
to treat Mr. Rettig as a hostile witness and to pose leading
questions. Mr. Rettig responded to the first twelve leading
questions, admitting that he had agreed to testify against
Mr. Bond, that he spoke by phone with Mr. Bond several times on
the day of the murder, and that he met up with Mr. Bond later
that same day. The prosecutor then asked seven additional
leading questions about the details of the robbery and murder of
Mr. Mortensen. Mr. Rettig refused to answer those questions,
invoking his Fifth Amendment privilege. Mr. Bond contends that
the upshot of this chain of events was that the prosecutor
effectively testified on behalf of Mr. Rettig, leaving Mr. Bond with
no means to challenge the assertions made in the leading
questions. Moreover, he argues that the seven additional leading
questions were designed to attack his theory of compulsion and
that the State presented no other evidence to rebut his defense. He
therefore claims a violation of his right under the Confrontation
Clause.
¶ 32 The Confrontation Clause provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” U.S. CONST. amend. VI. This
constitutional protection ensures a criminal defendant
a personal examination and cross-examination of the
witness, in which the accused has an opportunity, not
only of testing the recollection and sifting the
conscience of the witness, but of compelling him to
stand face to face with the jury in order that they may
look at him, and judge by his demeanor upon the
stand and the manner in which he gives his testimony
whether he is worthy of belief.
Mattox v. United States, 156 U.S. 237, 242–43 (1895).
¶ 33 A prosecutor may impermissibly infringe on this right if
she asks leading questions of a witness who claims a privilege
against self-incrimination or otherwise refuses to answer. In
Douglas v. Alabama, the Supreme Court held that the defendant’s
right to confrontation was violated when the prosecutor used
leading questions to read the confession of a codefendant
who claimed a Fifth Amendment privilege. 380 U.S. 415, 416–17,
419–20 (1965). There, the Court reasoned that even though the
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prosecutor’s questions were not technically evidence, the
questions “may well have been the equivalent in the jury’s mind
of testimony” and “the jury might improperly infer both that the
statement had been made and that it was true.” Id. at 419. The
Court reversed the conviction, holding that the defendant had no
means to challenge the truthfulness of the statement. Id. at 418–20;
see also State v. Villarreal, 889 P.2d 419 (Utah 1995) (finding a
Confrontation Clause violation when a codefendant refused to
testify and the prosecutor asked leading questions based on the
codefendant’s earlier confession).
¶ 34 Mr. Bond acknowledges that his counsel did not object
to the prosecutor’s conduct or move for mistrial on Confrontation
Clause grounds. Therefore, he argues in the alternative that the
trial court plainly erred in permitting the violation and that his
counsel were ineffective for failing to move for mistrial on this
basis.
A. Mr. Bond Has Not Demonstrated that the
Trial Court Committed Plain Error
¶ 35 Mr. Bond argues that the trial court committed plain
error by permitting the prosecutor to ask leading questions
designed to inculpate him, thereby violating his rights under the
Confrontation Clause. Mr. Bond and the State dispute the
standard applicable to his unpreserved Confrontation Clause
claim. Mr. Bond contends that where there is a constitutional
violation, the burden to prove harm under plain error shifts to the
State to demonstrate that the error was harmless beyond a
reasonable doubt. The State acknowledges that it carries such a
burden for preserved Sixth Amendment claims, but it argues that
when the claim is unpreserved, the burden to prove prejudice
remains with the defendant. We agree with the State and hold that
the defendant retains the burden to show harm for unpreserved
federal constitutional claims under plain error. Applying this
standard, we conclude that Mr. Bond is unable to meet his burden
to demonstrate that he suffered prejudice.
1. The Standard of Review for Mr. Bond’s Unpreserved
Confrontation Clause Claim Under the Plain Error Doctrine
¶ 36 The plain error doctrine serves as an exception to our
long-standing rule that issues cannot be raised on appeal if they
were not argued below at trial. Monson v. Carver, 928 P.2d 1017,
1022 (Utah 1996). The exception “enables the appellate court to
14
STATE v. BOND
Opinion of the Court
balance the need for procedural regularity with the demands of
fairness.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (internal
quotation marks omitted). But it imposes a high burden on
defendants: they must demonstrate that “(i) [a]n error exists;
(ii) the error should have been obvious to the trial court; and
(iii) the error is harmful, i.e., absent the error, there is a reasonable
likelihood of a more favorable outcome for the appellant.” State v.
Dunn, 850 P.2d 1201, 1208 (Utah 1993).
¶ 37 Mr. Bond cites the Supreme Court’s decision in Chapman
v. California, 386 U.S. 18 (1967), to argue that the burden to
demonstrate harm—the third part of the plain error test—shifts
from the defendant to the State when a constitutional error is
alleged. In Chapman, the Court held that “before a federal
constitutional error can be held harmless, the court must be able
to declare a belief that it was harmless beyond a reasonable
doubt.” Id. at 24. And the Court reaffirmed this principle in
Delaware v. Van Arsdall with language this court has often
employed: “[A]n otherwise valid conviction should not be set
aside if the reviewing court may confidently say, on the whole
record, that the constitutional error was harmless beyond a
reasonable doubt.” 475 U.S. 673, 681 (1986).
¶ 38 Neither Chapman nor Van Arsdall specified whether this
federal standard applies with equal force to preserved and
unpreserved trial errors, and we acknowledge that our precedent
on this issue has not been consistent. 10 In the years immediately
following the Chapman decision, we cited or applied the harmless
beyond a reasonable doubt standard with little discussion. See,
e.g., State v. Martinez, 457 P.2d 613, 614 (Utah 1969) (first instance
of this court applying Chapman, concluding that alleged Miranda
and Fourth Amendment violations were harmless beyond a
10 In recent decisions, our court of appeals has pointed out a
tension in our previous cases. State v. Wright, 2013 UT App 142,
¶ 41 n.6, 304 P.3d 887 (noting that the question of “[w]hether the
defendant or the State bears the burden of showing harm . . . [is]
not readily resolvable under our current precedent”); State v. Cox,
2012 UT App 234, ¶ 15 n.2, 286 P.3d 15 (Voros, J., concurring)
(stating that “Utah case law is not entirely clear” on the issue of
“who bears the burden of proof, when a claim of constitutional
error is raised within the plain error context”).
15
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reasonable doubt); State v. McGee, 473 P.2d 388, 391 (Utah 1970)
(applying the standard without citing to authority). And in
subsequent decisions, we have applied the standard in an
inconsistent manner. For example, in State v. Tillman, we applied
the heightened review standard to an unpreserved challenge to
the prosecutor’s comments about the defendant’s decision not to
testify. 750 P.2d 546, 553 (Utah 1987). 11 We quoted the “harmless
beyond a reasonable doubt” language from Van Arsdall and
ultimately did “not hesitate in holding any error was harmless
beyond a reasonable doubt” because there was significant
evidence of guilt. Id. at 555. In State v. Ross, we again addressed a
constitutional challenge under the doctrine of plain error. 2007 UT
89, 174 P.3d 628. There, the prosecution misstated evidence
during closing argument without objection from the defendant. Id.¶¶ 56–57. As to the harm, we asserted that “[i]f prosecutorial
misconduct is established, the State must show that the error was
harmless beyond a reasonable doubt.” Id. ¶ 54. We ultimately
determined that the prosecutor’s comments were “harmless given
the weight of evidence against” the defendant and affirmed the
conviction. Id. ¶¶ 57–58.
¶ 39 In contrast to Tillman and Ross, in State v. Medina-Juarez,
we applied a plain error analysis to the defendant’s unpreserved
claim that the court erroneously admitted statements that had
been taken in violation of his Fifth Amendment rights. 2001 UT
79, ¶¶ 17–18, 34 P.3d 187. We held that the defendant failed to
11 Because State v. Tillman was a capital case, which may garner
unique review under our case law, its precedential value in this
non-death penalty setting is somewhat questionable. We do,
however, recognize an inconsistency within Tillman. We began
our analysis in Tillman by noting: “This Court will review errors
raised and briefed on appeal in death penalty cases, even though
no proper objection was made at trial, but will reverse a
conviction based upon such errors only if they meet the manifest
and prejudicial error standard.” 750 P.2d 546, 553 (Utah 1987).
Despite this statement, we then employed the “harmless beyond a
reasonable doubt” standard in our analysis. Id. at 555. But we
need not resolve this discrepancy here, and we do not decide
whether today’s abrogation of the “harmless beyond a reasonable
doubt” standard in some of our earlier cases, see infra ¶¶ 38–46,
extends to our death penalty jurisprudence as well.
16
STATE v. BOND
Opinion of the Court
establish prejudice because he had not proven that the admitted
statements were sufficiently harmful. Id. ¶ 18. And in State v. Cruz,
we recognized that federal courts apply plain error review to
unpreserved constitutional claims, requiring the defendant to
show prejudice. 2005 UT 45, ¶ 18, 122 P.3d 543.
¶ 40 Furthermore, in State v. Maestas, we applied different
standards for unpreserved Fifth and Sixth Amendment claims.
2012 UT 46, 299 P.3d 892. There, the defendant brought a
multitude of constitutional challenges. He first claimed a violation
of his Sixth Amendment right to counsel, arguing that the error
should warrant per se reversal under the structural error
doctrine 12 because counsel was denied at critical stages of the
proceeding. Id. ¶ 57. The court began by quoting the “harmless
beyond a reasonable doubt” language from Van Arsdall, id. ¶ 56,
but then stated that the defendant’s claims were unpreserved and
thus could be reviewed only for plain error, id. ¶¶ 59, 65, 67. The
court then went on to determine that none of the claims
warranted per se reversal as structural error and that the
defendant therefore bore the burden to demonstrate harm. Id.
¶¶ 64, 66, 71. The defendant in Maestas next raised an
unpreserved Fifth Amendment claim, arguing that the prosecutor
impermissibly commented on the defendant’s decision not to
testify. Id. ¶ 161. We quoted the standard from Tillman, id. ¶ 162,
and, without stating which party bore the burden, analyzed the
harm under the stricter “harmless beyond a reasonable doubt
standard,”id. ¶ 165.
¶ 41 The confusion in Maestas and our previous cases is
perhaps unsurprising given that this court appears to have never
12 A structural error is a “defect affecting the framework
within which the trial proceeds, rather than simply an error in the
trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991).
Only a very limited number of errors qualify as structural. See
Johnson v. United States, 520 U.S. 461, 468–69 (1997) (listing errors
found to be structural). Because these errors are so serious, they
generally “defy analysis by ‘harmless-error’ standards,”
Fulminante, 499 U.S. at 309; but, as we explain below, even
structural errors are subject to preservation requirements,
meaning that a defendant must establish plain error if he does not
preserve the error at trial. Infra ¶¶ 42–46.
17
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directly settled a dispute over the proper review standard for an
unpreserved federal constitutional claim. 13 But we now take the
opportunity to clarify the appropriate standard for such claims.
We therefore turn to recent pronouncements by the United States
Supreme Court and federal circuit courts, and we disavow any of
our precedent that is inconsistent with those articulations. 14
¶ 42 In Johnson v. United States, the Supreme Court held that
when a defendant raises an unpreserved constitutional claim—
even one serious enough to constitute structural error—the claim
is subject to plain error review under which the defendant bears
the burden to show harm. 520 U.S. 461 (1997); see also United States
v. Olano, 507 U.S. 725, 734 (1993) (explaining that under plain
error, “[i]t is the defendant rather than the Government who bears
the burden of persuasion with respect to prejudice”). In Johnson,
though she did not object at trial, the defendant claimed on appeal
that the trial court violated her Fifth and Sixth Amendment rights
by itself deciding an element of the charged crime rather than
submitting the element to the jury. 520 U.S. at 464. The Supreme
13 In State v. Maestas, for example, the issue before the court
was primarily whether the alleged errors were structural in nature
(and therefore per se reversible), and not what standard should
apply if the errors were not structural. 2012 UT 46, ¶¶ 64, 66, 71,
299 P.3d 892.
14 We reiterate that our discussion here relates to claims
brought under the federal constitution. As to other claims, we
have already announced that our “preservation rule applies to
every claim, including constitutional questions, unless a
defendant can demonstrate that ‘exceptional circumstances’ exist
or ‘plain error’ occurred.” State v. Holgate, 2000 UT 74, ¶ 11, 10
P.3d 346 (citation omitted); see also State v. Houston, 2015 UT 40,
¶¶ 18, 20, 353 P.3d 55 (recognizing that Utah Rule of Criminal
Procedure 22(e) “operates as another limited exception to the
preservation doctrine,” permitting facial constitutional challenges
to a defendant’s sentence in order to “correct an illegal sentence
. . . or a sentence imposed in an illegal manner”(internal quotation
marks omitted)). And for unpreserved state constitutional
questions, the burden to prove plain error does not change: a
defendant must demonstrate that an obvious and prejudicial error
occurred. See State v. Menzies, 889 P.2d 393, 405 (Utah 1994).
18
STATE v. BOND
Opinion of the Court
Court first affirmed the basic precept that a criminal defendant
may forfeit a right afforded her by failing to object at trial. Id. at
465; see also Olano, 507 U.S. at 731 (“[A] constitutional right . . .
may be forfeited in criminal . . . cases by the failure to make timely
assertion of the right before a tribunal having jurisdiction to
determine it.” (internal quotation marks omitted)). The Court then
recognized that rule 52(b) of the Federal Rules of Criminal
Procedure provides an exception to this forfeiture principle,
permitting courts to correct a plain error even if it was never
raised before the trial court. Johnson, 520 U.S. at 466. However,
plain error review under rule 52(b) requires the defendant to meet
a stringent four-part test. 15 It places a burden on the defendant to
show that the error “affect[ed] substantial rights,” FED. R. CRIM. P.
52(b), meaning that “the error must have been prejudicial: It must
have affected the outcome of the district court proceedings.”
Olano, 507 U.S. at 734.
¶ 43 The defendant in Johnson argued that she should be
relieved of the burden to prove plain error under rule 52(b)
because the alleged error was structural and thus warranted
automatic reversal. Johnson, 520 U.S. at 466–67. But the Supreme
Court rejected the defendant’s argument that unpreserved
allegations of structural error should not be reviewed for plain
error. Id. Instead, the Court declared that “the seriousness of the
error claimed does not remove consideration of it from the ambit
of the Federal Rules of Criminal Procedure.” Id. at 466. Therefore,
the Court did not review the unpreserved claim as a per se
reversible structural error or under the heightened Chapman
standard; rather, it conducted a harmlessness analysis under its
rule 52(b) plain error doctrine. Id. at 466–70. Under Johnson,
therefore, even federal constitutional errors so serious as to be
deemed structural are subject to preservation requirements. See
15 Federal plain error review is similar to Utah’s plain error
review, although the language differs and the federal test involves
an extra step. Under federal analysis, a court has the discretion to
correct an error if there is an “(1) error, (2) that is plain, and
(3) that affect[s] substantial rights[,] . . . [and] (4) the error
seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” Johnson, 520 U.S. at 467 (first and fifth
alterations in original) (internal quotation marks omitted).
19
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Neder v. United States, 527 U.S. 1, 9 (1999) (recognizing that in
Johnson, “[t]he defendant failed to object at trial, and we thus
reviewed her claim for ‘plain error’”).
¶ 44 Similarly, in Kimmelman v. Morrison, the Supreme Court
explained that if a defendant fails to preserve a Fourth
Amendment objection at trial, “he also loses the opportunity to
obtain direct review under the harmless-error standard of
Chapman v. California.” 477 U.S. 365, 382 n.7 (1986). And the Tenth
Circuit reached the same determination we do here: for an
unpreserved constitutional error, “our review should be for plain
error under [Federal Rule of Criminal Procedure] 52(b), as
opposed to the ‘harmless beyond a reasonable doubt’ standard
under Chapman . . . for preserved constitutional error.” United
States v. Lott, 310 F.3d 1231, 1240 (10th Cir. 2002). 16 Based upon
these federal pronouncements, we hold that unpreserved federal
constitutional claims are not subject to a heightened review
standard but are to be reviewed under our plain error doctrine. 17
¶ 45 This holding comports with the aims of preservation as
expressed by the United States Supreme Court and this court. The
Supreme Court has explained that under plain error review, the
16 A number of our sister states that have considered the issue
have likewise interpreted federal precedent to require the
heightened standard only for preserved constitutional claims. E.g.,
Martinorellan v. State, 343 P.3d 590, 593 (Nev. 2015); Savoy v. State,
22 A.3d 845, 851–52, 852 n.4 (Md. 2011); People v. Miller, 113 P.3d
743, 749 (Colo. 2005).
17 In Chapman v. California, the Supreme Court held that its
“harmless beyond a reasonable doubt” standard should govern
review of federal constitutional errors, even in state courts. 386
U.S. 18, 20–21 (1967). But where the “harmless beyond a
reasonable doubt” standard is not applicable, Chapman is silent as
to whether we are free to apply our own state plain error test or
are bound to follow the federal plain error test. However, we need
not decide that issue here for two reasons. First, both parties
exclusively relied upon and advocated under our Utah plain error
standard in their briefs. Second, the outcome here would be the
same under either test: both tests in these circumstances require
Mr. Bond to show prejudice, and he has failed to do so. See State v.
Dunn, 850 P.2d 1201, 1208–09 (Utah 1993); Johnson, 520 U.S. at 467.
20
STATE v. BOND
Opinion of the Court
“burden should not be too easy for defendants” and the standard
of review should “encourage timely objections and reduce
wasteful reversals by demanding strenuous exertion to get relief
for unpreserved error.” United States v. Dominguez Benitez, 542
U.S. 74, 82 (2004). Similarly, our Utah rules of preservation
promote judicial economy by allowing a court to rule on the
issues and correct errors, thus avoiding appeals and retrials.
Patterson v. Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828. And because
in our adversarial system the responsibility to detect errors lies
with the parties and not the court, preservation rules encourage
litigants to grant the district court the first opportunity to rule on
an issue. Id. ¶ 16.
¶ 46 Moreover, requiring a defendant to demonstrate
prejudice on an unpreserved claim harmonizes the prejudice
inquiries under the plain error and ineffective assistance of
counsel doctrines. Both doctrines serve as exceptions to our
preservation rules, permitting a court to review errors that would
otherwise be forfeited. See id. ¶ 13. For ineffective assistance of
counsel claims, which are themselves constitutional concerns
grounded in the Sixth Amendment, the Supreme Court has placed
on the defendant the burden of showing prejudice. See Strickland
v. Washington, 466 U.S. 668, 684–87 (1984). 18 And ineffective
assistance claims are almost never raised in the trial itself but are
usually made for the first time by appellate counsel. It would
make little sense to require a defendant to prove prejudice under
the circumstances of ineffective assistance and yet relieve him of
that duty for other constitutional errors that could more easily
have been raised during the trial. This court cannot conceive of a
reason for these standards to diverge, and Mr. Bond has made no
attempt to provide us with one.
¶ 47 Having determined the appropriate plain error test for
unpreserved federal constitutional claims, we now apply that
standard to Mr. Bond’s Confrontation Clause argument.
18 The Court has held that prejudice is presumed for certain
Sixth Amendment violations. See Strickland v. Washington, 466 U.S.
668, 692 (1984). But this class of error is extremely limited,
including, for example, an actual or constructive denial of the
right to counsel or when counsel labors under an actual conflict of
interest. Id.21
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2. Mr. Bond Has Failed to Establish that Any Error Was Harmful
¶ 48 To succeed on his Confrontation Clause claim, Mr. Bond
must satisfy all three parts of the plain error test: he must
demonstrate (1) that there was an error, (2) that it should have
been obvious to the trial court, and (3) that it was harmful. See
Dunn, 850 P.2d at 1208–09. Mr. Bond argues that the trial court
committed error in permitting the prosecutor to ask Mr. Rettig
leading questions because Mr. Bond had no effective means to
cross-examine the assertions made through the questioning. And
he contends that the prosecutor’s questioning was contrary to
settled law and therefore should have been obvious to the trial
court. Finally, Mr. Bond argues that the leading questions were
harmful because they constituted “the only direct evidence that
[Mr.] Bond killed Kay [Mortensen] with the requisite intent rather
than under compulsion.”
¶ 49 Because Mr. Bond bears the burden on plain error
review, if any of the three elements is not satisfied, his claim fails.
Here, we turn first to the prejudice element. “An error is harmful
if, absent the error, there is a reasonable likelihood of a more
favorable outcome for the appellant, or phrased differently, [if]
our confidence in the verdict . . . is undermined.” Maestas, 2012
UT 46, ¶ 37 (first alteration in original) (internal quotation marks
omitted). In reviewing each of the seven questions below, we
determine that the questions did little more than duplicate
evidence already admitted at trial. Moreover, any aspects of the
leading questions that went beyond established evidence
ultimately had little bearing on Mr. Bond’s defense of compulsion.
Mr. Bond therefore has not established prejudice.
a. The First Five Questions
¶ 50 The prosecutor first asked Mr. Rettig five related
questions that all focused on the planning and initial stages of the
crime:
Question 1 “Isn’t it true that you’ve told the police that
the reason you were meeting up with [Mr.]
Bond is because you and him had talked
about going to a man’s house and taking
some guns the day before, November 15,
2009?”
Question 2 “Isn’t it true that you told the police that [Mr.
Bond] had actually approached you the day
22
STATE v. BOND
Opinion of the Court
before and talked about going to some guy’s
house in Payson and stealing some guns?”
Question 3 “Okay, so the question is, isn’t it true that
you told the police that you drove from
Vernal to Payson, that you stopped at
Walmart and bought some zip ties and latex
gloves and some hoodies with Mr. Bond?”
Question 4 “Isn’t it true that you told the police that you
went up to Kay Mortensen’s house and [Mr.
Bond] told you to stay in the car while he
went and knocked on the door?”
Question 5 “Isn’t it true that you actually entered the
house at the direction of [Mr. Bond] with the
gun and you helped zip tie Kay Mortensen?
Isn’t that true, isn’t that true that you told the
police?”
¶ 51 Together, these questions imply that Mr. Bond took the
lead in the early stages of the robbery. They suggest that Mr. Bond
originated the idea of robbing Mr. Mortensen, directed Mr. Rettig
to remain in the car when they arrived, knocked on the door, and
prompted Mr. Rettig to enter the home. But many of these factual
assertions were established by other evidence already presented
to the jury by the State. For example, in a recorded interview with
police, Mr. Bond explained that he and Mr. Rettig had planned to
travel to Mr. Mortensen’s home to steal his guns and that they met
up for that purpose on the day of the murder. Mr. Bond’s ex-wife
also testified that Mr. Bond told her he drove with Mr. Rettig to
Payson to rob Mr. Mortensen. Additionally, the State had
presented evidence that Mr. Bond brought zip ties and latex
gloves to Mr. Mortensen’s home on the night of the murder.
Likewise, the State established through earlier evidence that
Mr. Rettig held the gun as they entered the home and helped to
zip-tie Mr. Mortensen.
¶ 52 More importantly, however, none of the first five
questions directly contradicts or undermines Mr. Bond’s
compulsion defense. When the pair entered Mr. Mortensen’s
home, Mr. Bond and Mr. Rettig were carrying out a mutually
agreed upon plan to rob him of his guns. According to Mr. Bond’s
theory of the case, the plan went awry when Mr. Rettig forced him
to kill Mr. Mortensen at gunpoint. And Mr. Rettig’s alleged
23
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compulsion did not occur until well after the pair exited the car
and entered the home. Thus, any implication that Mr. Bond took
the lead in the early stages of the robbery did not foreclose the
possibility that Mr. Rettig changed course and later forced
Mr. Bond at gunpoint to kill Mr. Mortensen. In other words, even
if Mr. Bond directed the early stages of the robbery, his
compulsion defense remained intact. We therefore conclude that
these initial questions were unlikely to undermine Mr. Bond’s
defense or affect the outcome of the trial.
b. The Sixth Question
¶ 53 The prosecutor next asked more directly about the
circumstances of the murder and who was responsible for
carrying out the act:
Question 6 “Isn’t it true that you repeatedly told the
police that [Mr. Bond] is the one who stabbed
and killed Kay Mortensen and that you were
holding the gun upstairs in the bathroom;
isn’t that true?”
¶ 54 But this question is not harmful to Mr. Bond’s defense
because it actually restates Mr. Bond’s own version of events. The
State had introduced notes that Mr. Bond wrote and passed to
another inmate in which he related the exact scenario suggested
by the prosecutor’s question: he wrote that Mr. Rettig threatened
him with the handgun and compelled him to slit Mr. Mortensen’s
throat. Moreover, defense counsel argued the same version of
events in closing as the basis of Mr. Bond’s compulsion defense.
Far from prejudicing Mr. Bond, this question actually paralleled
his theory of the case. Thus, Mr. Bond was not prejudiced by this
question.
c. The Seventh Question
¶ 55 Finally, the prosecutor inquired about the proceeds of
the robbery—the guns stolen from Mr. Mortensen’s house:
Question 7 “Isn’t it true that you didn’t get any guns or
anything or any, or you didn’t get paid, you
didn’t receive anything, that’s what you told
the police, [that] you didn’t receive anything
at all?”
¶ 56 Through Mr. Bond’s jail notes and his interview with
police, the jury had already learned that Mr. Rettig left all of the
24
STATE v. BOND
Opinion of the Court
stolen guns with Mr. Bond after the murder. And in ruling on the
mistrial motion, the trial court observed that “there was . . .
substantial evidence already in the record to establish that
Mr. Rettig had not received any sort of financial or other benefit
from this event.” Therefore, because the jury already heard
evidence that Mr. Rettig did not receive the guns, we conclude
that this question would have had little impact on the jury.
¶ 57 For each of the seven questions, Mr. Bond has failed to
demonstrate prejudice resulting from the prosecutor’s assertions
that would undermine our confidence in the jury’s verdict.
Because he has not met his burden to show prejudice, we reject his
claim of plain error.
B. Mr. Bond Has Failed to Establish Ineffective Assistance
of Counsel for Counsel’s Failure to Move for Mistrial
Based on a Confrontation Clause Violation
¶ 58 Mr. Bond argues that his counsel provided ineffective
assistance because counsel did not move for a mistrial based on an
alleged Confrontation Clause violation. He contends that
counsel’s performance was deficient because there was “no
conceivable legitimate tactic or strategy” for failing to move on
this ground. State v. Tennyson, 850 P.2d 461, 468 (Utah App. 1993).
Moreover, he claims he was prejudiced because the trial court
would have been compelled to grant a mistrial based on the
alleged Confrontation Clause violation. We determine, however,
that no prejudice resulted from counsel’s actions, and Mr. Bond’s
claim accordingly fails.
¶ 59 The Sixth Amendment to the United States Constitution
guarantees a criminal defendant the “Assistance of counsel for his
defense,” meaning that he has “the right to effective assistance of
counsel,” State v. Templin, 805 P.2d 182, 186 (Utah 1990) (internal
quotation marks omitted). Under the Supreme Court’s decision in
Strickland v. Washington, Mr. Bond must satisfy a two-part test to
demonstrate that he has been denied counsel’s effective
assistance. 466 U.S. 668, 687 (1984). First, Mr. Bond must show
that “his counsel rendered a deficient performance in some
demonstrable manner, which performance fell below an objective
standard of reasonable professional judgment.” Archuleta v.
Galetka, 2011 UT 73, ¶ 38, 267 P.3d 232 (internal quotation marks
omitted). Second, he must show that “counsel’s performance
prejudiced” him, meaning that there is “a reasonable probability
25
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that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. ¶¶ 38, 40 (internal
quotation marks omitted). Here, we first turn to the prejudice
element of Mr. Bond’s claim and determine that he has failed to
establish there is “a reasonable probability” that the “result of the
proceeding would have been different.” Id. ¶ 40.
¶ 60 In much the same way that Mr. Bond failed to show
prejudice under plain error, see supra ¶¶ 49–57, he has also failed
to demonstrate prejudice under the ineffective assistance of
counsel test in Strickland. Even assuming there was a
Confrontation Clause violation, Mr. Bond did not establish that he
was prejudiced by the prosecutor’s leading questions. Because
there was no harm from the questions, he also has not shown “a
reasonable probability that . . . the result of the proceeding would
have been different,” meaning, in this case, that the trial court
would have granted the motion for mistrial had counsel moved
on that ground. Archuleta, 2011 UT 73, ¶ 40. Therefore, we hold
that Mr. Bond has not established that defense counsel’s failure to
move for a mistrial based on his Confrontation Clause right
constituted ineffective assistance of counsel.
III. MR. BOND HAS NOT ESTABLISHED INEFFECTIVE
ASSISTANCE FOR COUNSEL’S FAILURE TO
MOVE TO MERGE HIS CONVICTIONS
¶ 61 Lastly, Mr. Bond argues that he received ineffective
assistance because counsel did not move to merge his charge of
aggravated kidnapping with the charge of aggravated murder.
We hold that the charges could not merge as a matter of law and
therefore such a motion would have been unsuccessful.
Accordingly, Mr. Bond cannot demonstrate that his trial lawyers
were ineffective for failing to raise a futile motion.
¶ 62 Under the first part of Strickland, Mr. Bond must show
that “his counsel rendered a deficient performance in some
demonstrable manner, which performance fell below an objective
standard of reasonable professional judgment.” Archuleta v.
Galetka, 2011 UT 73, ¶ 38, 267 P.3d 232 (internal quotation marks
omitted). In so doing, Mr. Bond must “rebut the strong
presumption that under the circumstances, the challenged action
might be considered sound trial strategy.” State v. Litherland, 2000
UT 76, ¶ 19, 12 P.3d 92 (internal quotation marks omitted).
26
STATE v. BOND
Opinion of the Court
¶ 63 “[T]he failure of counsel to make motions . . . [that]
would be futile if raised does not constitute ineffective
assistance.” Codianna v. Morris, 660 P.2d 1101, 1109 (Utah 1983)
(internal quotation marks omitted). This is because the decision
not to pursue a futile motion is almost always a “sound trial
strategy.” Litherland, 2000 UT 76, ¶ 19 (internal quotation marks
omitted). And where there is a sound strategy, a defendant cannot
satisfy his burden of demonstrating that counsel’s “performance
fell below an objective standard of reasonable professional
judgment.” Archuleta, 2011 UT 73, ¶ 38 (internal quotation marks
omitted). We thus consider whether a motion for merger of
Mr. Bond’s convictions would have been futile.
¶ 64 Mr. Bond argues that because aggravated kidnapping is
a predicate offense of aggravated murder and is established by
proof of the same facts, the former is a lesser included offense of
the latter and he cannot be convicted of both. 19 He contends that
allowing both convictions to stand would violate Utah’s merger
doctrine—set forth in Utah Code section 76-1-402(3)—and the
Double Jeopardy Clause. 20
¶ 65 The merger doctrine “is a judicially-crafted doctrine
available to protect criminal defendants from being twice
punished for committing a single act that may violate more than
one criminal statute.” State v. Smith, 2005 UT 57, ¶ 7, 122 P.3d 615(internal quotation marks omitted). “The motivating principle
behind the merger doctrine is to prevent violations of
19 In its brief, the State also discusses the so-called Finlayson
merger doctrine and argues that it does not apply here. Mr. Bond
appears to agree, noting that neither the court of appeals decision
in that case, State v. Finlayson, 956 P.2d 283, 287 (Utah Ct. App.
1998), nor this court’s subsequent decision, State v. Finlayson, 2000
UT 10, 994 P.2d 1243, “are material to the issue” presented here.
Accordingly, we do not address Mr. Bond’s claim under the
Finlayson doctrine. See Allen v. Friel, 2008 UT 56, ¶ 16, 194 P.3d 903(declining to address arguments not raised or briefed by the
parties).
20 Mr. Bond raises his double jeopardy argument under both
the Utah and United States Constitutions. But because he “has not
separately briefed his state constitutional claim, . . . we do not
reach it.” State v. Mace, 921 P.2d 1372, 1376 (Utah 1996).
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constitutional double jeopardy protection.” Id.; see also Brown v.
Ohio, 432 U.S. 161, 169 (1977) (holding that the Double Jeopardy
Clause “forbids successive prosecution and cumulative
punishment for a greater and lesser included offense”). The
doctrine is codified in Utah Code section 76-1-402(3), which
provides that a defendant “may not be convicted of both the
offense charged and the included offense.” An offense is an
included offense if “[i]t is established by proof of the same or less
than all the facts required to establish the commission of the
offense charged.” UTAH CODE § 76-1-402(3).
¶ 66 The State charged Mr. Bond with aggravated murder
under Utah Code section 76-5-202(1), which elevates homicide to
aggravated murder “if the actor intentionally or knowingly causes
the death of another” under any of several enumerated
circumstances. The jury instruction in Mr. Bond’s case presented
the jury with the following possible aggravating circumstances:
(a) The homicide was committed incident to an act,
scheme, course of conduct, or criminal episode during
which the actor committed or attempted to commit
aggravated robbery, robbery, aggravated burglary,
aggravated kidnapping, or kidnapping; OR
(b) The homicide was committed for pecuniary gain
....
See id. § 76-5-202(1)(d), (g). The jury convicted Mr. Bond of both
the aggravated kidnapping and aggravated murder of
Mr. Mortensen, but the verdict form did not specify which
circumstance the jury deemed satisfied for the aggravated murder
charge.
¶ 67 Mr. Bond argues that because aggravated kidnapping is
a predicate offense of aggravated murder and was most “closely
and causally related” to the homicide, it must merge with the
aggravated murder conviction. He cites precedent from this court
for the proposition that a predicate offense is a lesser included
offense of aggravated murder and thus precludes conviction for
both. See State v. Shaffer, 725 P.2d 1301, 1313–14 (Utah 1986)
(merging an aggravated robbery conviction with a first-degree
murder conviction because “[n]o additional facts or separate
elements are required to prove aggravated robbery after first
degree murder based on the predicate offense of aggravated
robbery is shown”); State v. Wood, 868 P.2d 70, 88–91 (Utah 1993)
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STATE v. BOND
Opinion of the Court
(merging a predicate offense of aggravated sexual assault with a
first-degree murder conviction); State v. Nielsen, 2014 UT 10,
¶¶ 57–58, 326 P.3d 645 (merging a conviction for aggravated
kidnapping with an aggravated murder conviction because
aggravated kidnapping is established by proof of the same
elements as or fewer elements than aggravated murder).
¶ 68 But the cited cases are ultimately irrelevant to our
analysis here. The touchstone of the analysis under Utah Code
section 76-1-402(3) and the Double Jeopardy Clause is the intent of
the Legislature, Smith, 2005 UT 57, ¶ 9, and Mr. Bond errs in
failing to acknowledge the difference between the statutes at issue
in Shaffer, Wood, and Nielsen and the aggravated murder statute
under which he was convicted.
¶ 69 To resolve whether convictions must merge, the
“determination to be made is whether the legislature intended” an
offense to be a lesser included offense of another. State v. McCovey,
803 P.2d 1234, 1238 (Utah 1990); see also Albernaz v. United States,
450 U.S. 333, 344 (1981) (“[T]he question of what punishments are
constitutionally permissible is not different from the question of
what punishments the Legislative Branch intended to be imposed.
Where Congress intended . . . to impose multiple punishments,
imposition of such sentences does not violate the Constitution.”
(Stewart, J., concurring) (first alteration in original) (internal
quotation marks omitted)). To determine whether the Legislature
intended an offense to be a lesser included offense, we look to the
plain language of the statute that defines the criminal offense.
Smith, 2005 UT 57, ¶ 11.
¶ 70 We have recognized that some statutes operate as
“enhancement statutes.” McCovey, 803 P.2d at 1237. They “are
different in nature than other criminal statutes because they single
out particular characteristics of criminal conduct as warranting
harsher punishment.” Smith, 2005 UT 57, ¶ 10 (internal quotation
marks omitted). And where the Legislature has designated a
statute as an enhancing statute, the merger doctrine has no effect.
Id. ¶ 9. However, the Legislature exempts a statute from the
requirements of the merger doctrine only when “an explicit
indication of legislative intent is present in the specific offense
statute.” Id. ¶ 11. Applying this requirement in State v. Ross, we
held that an underlying felony that constitutes the aggravating
factor for aggravated murder merges with the aggravated murder
conviction. 2007 UT 89, ¶ 64, 174 P.3d 628. This was because
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“explicit indication [of intent] is required” and the Legislature
“has done nothing to clearly indicate that the provision . . . is
intended to enhance the penalty for [murder] when certain
characteristics are present.” Id. (second and third alterations in
original) (internal quotation marks omitted). As in Ross, the
statutes at issue in Shaffer, Wood, and Nielsen contained no such
explicit exemption from the merger doctrine. See UTAH CODE
§ 76-5-202 (1953) (first-degree murder statute in Shaffer); id. § 76-5-
202 (1988) (first-degree murder statute in Wood); id. § 76-5-202
(2000) (aggravated murder statute in Nielsen).
¶ 71 After Ross, however, the Legislature did amend the
aggravated murder statute to provide an explicit exemption from
the merger doctrine. See Criminal Penalties Revisions, 2008 Utah
Laws 643–45. The amendment added subsection (5), which reads:
Any aggravating circumstance described in
Subsection (1) or (2) that constitutes a separate offense
does not merge with the crime of aggravated murder.
. . . A person who is convicted of aggravated murder,
based on an aggravating circumstance described in
Subsection (1) or (2) that constitutes a separate
offense, may also be convicted of, and punished for,
the separate offense.
UTAH CODE § 76-5-202(5). The plain language of this amended
aggravated murder statue—under which Mr. Bond was
convicted—can leave no doubt that the Legislature intended that
a predicate offense does not merge with the homicide conviction.
¶ 72 Because, as a matter of law, Mr. Bond’s convictions for
aggravated kidnapping and aggravated murder do not merge, a
motion seeking merger would have been futile. Therefore,
Mr. Bond has not shown that his counsel performed deficiently,
and his claim for ineffective assistance of counsel fails.
CONCLUSION
¶ 73 We determine that each of Mr. Bond’s three claims fails.
Mr. Bond has not established that the trial court abused its
discretion in denying his motion for mistrial because he has not
demonstrated that the prosecutor committed misconduct.
Mr. Bond also failed to carry his burden to demonstrate prejudice
for his alleged Confrontation Clause violation. Finally, Mr. Bond
cannot show that counsel performed deficiently by failing to make
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STATE v. BOND
Opinion of the Court
a futile motion to merge his convictions. We therefore affirm his
conviction.
31