State v. Sundara , 2021 UT App 85 ( 2021 )

2021 UT App 85THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
VIENPHET SUNDARA,
Appellant.
Opinion
No. 20190399-CA
Filed August 12, 2021
Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 161900600
Nathalie S. Skibine, Attorney for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and DIANA HAGEN
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 In a case that had gone unresolved for many years,
Vienphet Sundara was convicted in 2019 of a 1991 murder after
police reopened their investigation based on modern forensic
techniques. Sundara appeals, alleging that his trial counsel
rendered ineffective assistance and that the trial court erred in
dismissing a juror and in giving a flight instruction. We affirm.
State v. Sundara
BACKGROUND1
The Crime
¶2 On the evening of May 18, 1991, Victim was attending a
dance held for the benefit of the Laotian community. The dance
was held at a community center in Salt Lake City, Utah. Victim,
who had allegedly punched Sundara’s older brother about a
month before, was described as being “afraid,” “scared,” and
“nervous” during the dance. A friend advised Victim to remain
inside at a table among his other friends if he was concerned
about his safety because nobody would “do anything” to him
with all his friends nearby.
¶3 At around midnight, Victim and two friends left the table
and went outside the community center. One friend stood
outside to smoke a cigarette, the other friend went to a nearby
convenience store to use the payphone, and Victim went to find
a spot nearby to urinate. Sundara’s friend (Friend) and
Sundara’s other brother (Brother) were also outside at this point
and heard Victim and Sundara arguing. Friend and Brother
walked over to the place of the argument, at which point Brother
said, “Grab him.” Friend grabbed Victim’s right arm, and
Brother grabbed his left. Friend thought Sundara was going to
just punch Victim, but Sundara pulled out a knife, which Friend
described as a “Rambo knife.” Sundara stabbed Victim and ran
from the scene with Friend and Brother.
¶4 About the same time, one of Victim’s friends heard a
“commotion” that involved “screaming, yelling, like a scuffle.”
He looked over to see Victim under a streetlight with men
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
20190399-CA 2 2021 UT App 85State v. Sundara
“running towards him, as if they were chasing someone.” After a
moment, the men chasing Victim “ran back towards the side of
the building.” Victim’s friend noticed that “there were some
muddy-looking liquids on [Victim’s] shirts.” The friend ran
toward Victim, and Victim uttered, “[T]hey stabbed me.” The
friend tried to catch Victim as he collapsed and noticed that
Victim’s shirt was soaked with blood. An off-duty police officer
(Sergeant), who was working security at the dance, came to
where Victim was lying on the ground. Victim died at the scene.
The Stop
¶5 At 12:19 a.m. on May 19, Sergeant radioed to report that
there had been a stabbing at the community center. He reported
that the suspects were “male Orientals”2 who were traveling
westbound in a vehicle of unknown description on 1300 South
toward 300 West.
¶6 An officer (Officer), who was patrolling nearby, heard
Sergeant’s radio dispatch and responded. At 12:21 a.m., Officer
saw a “light-colored car with three male Asians” traveling
northbound on 300 West and turning right on 900 South, less
than a mile from the community center. Officer testified that the
traffic was very light at that hour and he saw no other vehicles
occupied by individuals of Asian descent.
2. We recognize that this term is offensive and antiquated,
but we use it here because it was used in communications
leading to the stop. See generally Yanan Wang, The Long History
and Slow Death of a Word Once Used to Describe Everyone and
Everything from Egypt to China as Well as Rugs, Wash. Post (May
13, 2016), https://www.washingtonpost.com/news/morning-
mix/wp /2016/05/13/the-long-history-and-slow-death-of-a-word-
used-to-describe-everyone-from-turks-to-the-chinese/
[https://perma.cc/4YBU-9GZ4].
20190399-CA 3 2021 UT App 85State v. Sundara
¶7 “Based on the proximity to the area, the proximity in
time, and the fact that the suspects and the car were a match,”3
Officer stopped the car on the collector ramp to I-15 located at
900 South and West Temple. Officer also testified that the “sole
basis for stopping” the car was his “suspicion of its involvement
in the stabbing” and not for a pattern of illegal driving. Sundara
was driving the car, and Brother and Friend were passengers.
Sundara initially gave police officers a false name, but Victim’s
friend was brought to the scene and identified the three
individuals as those involved in the earlier altercation. In
addition, police confirmed Sundara’s true identity by using his
photo identification.
The Evidence
¶8 Officer “notice[d] some dry but still relatively fresh blood
on the clothing, the hands, and on the face” of Sundara. Officer
also saw “a large knife with a significant amount of blood on it”
on the rear floor of the car.
¶9 Sundara, Brother, and Friend were arrested. The clothing
of the three men was seized for forensic analysis. In addition,
police swabbed blood stains located on Sundara’s face and hand.
These swabs, along with samples from Sundara’s clothing, tested
positive for human blood. Bloodstains on Friend’s and Brother’s
clothes also tested positive for human blood.
¶10 A test of the blood on the knife revealed that it matched
Victim’s blood type and enzyme type in a grouping that
3. This comment was made by Officer at the preliminary
hearing, and at this point in the testimony, he had mistakenly
said Sergeant had radioed that the suspects were “three male
Asians” traveling in a “light-colored vehicle.” In fact, Sergeant
had not specified the number of suspects or the color of their
vehicle.
20190399-CA 4 2021 UT App 85State v. Sundara
occurred in about 1 in 26 individuals in the Asian population.
Significantly, a fingerprint lift was taken from the blade of the
knife. But due to technological limitations in 1991, the analyst
was unable to make a match.
¶11 An autopsy of Victim revealed that he suffered three stab
wounds—two in the back and one in the lower neck. The wound
to the neck “was the fatal injury.” The wounds were consistent
with wounds that would have been caused by a “single-edge
blade” like the knife found in the car Sundara was driving.
¶12 After the investigation in 1991, no charges were filed, and
the case went unresolved.
The Case Is Reopened
¶13 In a 1994 FBI investigation involving another matter,
Friend told an undercover agent that he had been involved in a
murder at the community center “a few years ago.” Friend
claimed that he and another man “held [Victim] down and his
friend stabbed him twice, and then that he stabbed him twice.”
When asked to repeat the story the next day, Friend said that he
“held [Victim] down while his friend stabbed him twice.” Friend
was arrested at that time, but the record does not indicate if he
was prosecuted in 1994.
¶14 In 2014, police reopened the murder investigation and
reexamined the blood samples, knife, and fingerprint using
current forensic techniques.
¶15 A new fingerprint analyst examined the print that was
lifted from the knife. This examiner determined that the print
was “a comparable print,” meaning that it was of “the highest
quality” and would yield an “ID or an exclusion.” Identifying
thirteen unique characteristics on the print, the analyst stated
that she was “confident” in her conclusion that the print
recovered from the knife matched Sundara’s fingerprint.
20190399-CA 5 2021 UT App 85State v. Sundara
¶16 DNA testing was also performed on the blood evidence.
Bloodstains on Sundara’s shirt and pants matched Victim’s DNA
profile with a statistical frequency of 1 in 157 quintillion4 for the
Asian population. The DNA analyst testified that numbers in the
“sextillion or . . . quintillion” range are so “massive” that “the
likelihood of . . . getting another profile that’s exactly the same,
[is] astronomical.” Bloodstains on Friend’s pants matched
Victim’s DNA with a frequency of 1 in 1.09 million for the Asian
population.
¶17 While the knife itself did not test positive for blood when
the case was reopened, the adhesive tape used to lift the
fingerprint retained “a bloodstain that was also taken when they
took the fingerprint lift” in 1991. The DNA profile from the
fingerprint-lift bloodstain matched that of Victim with a
statistical frequency of 1 in 1.09 million for the Asian population.
¶18 As part of the new investigation, police interviewed
Sundara in Oklahoma, where he resided. Sundara admitted he
had been at the community center for the dance and had
borrowed his father’s car that evening. He recalled giving Friend
a ride home. Sundara claimed that he had not known Victim but
had heard rumors that he had been stabbed. Sundara
remembered being pulled over and suggested that the knife
belonged to his father, who used the car for fishing and camping
trips. When confronted with evidence that the knife and his
clothes from that night tested positive for Victim’s DNA,
Sundara suggested that “somebody” did “something stupid,”
like “throw the knife in [his] car.” He also said that “a lot of
people got a lot of blood that day” because there was “gangster
fighting” going on.
4. A quintillion is a number equal to a one followed by eighteen
zeros. See Number, Webster’s Third New Int’l Dictionary (2002).
20190399-CA 6 2021 UT App 85State v. Sundara
¶19 Sundara was charged with murder for Victim’s death.
Friend was also charged with murder, but he entered into an
agreement with the State and was allowed to plead guilty to
manslaughter in exchange for testifying at Sundara’s trial.
Jury Selection
¶20 The court seated eight jurors and two alternates. We
highlight the selection of two jurors because they play an
important role in the disposition of this case.
¶21 During the selection process, all the jurors were asked,
“Do you have an expectation that there must be scientific or
forensic evidence presented in a case before you could make a
decision related to the guilt or innocence of a person when the
case relates to a Homicide?” Juror 1 answered “Yes” to this
question. He explained his answer: “So like, it’s more of a
preference. I can [vote to convict] based off of, like, you know,
other evidence, but I prefer more like forensic.” But Juror 1
clarified that despite that preference, if the testimonial evidence
was sufficient, he would be willing to vote to convict. Juror 31,
who was selected as the first alternate, answered “No” to the
question.
The Protective Order and Replacement with an Alternate
¶22 Near the end of the second day of trial, the parties and the
court learned that someone was trying to serve Juror 1 with a
protective order. All parties agreed that if the juror were to be
served while at court, coming to the court, or leaving the court,
such an event might have a significant impact on the trial.
¶23 At the beginning of the third day of trial, the judge met in
chambers with defense counsel (Counsel) and the prosecutor.
The prosecutor had learned that the protective order was related
to an “ongoing harassment and revenge porn case” and “some
type of physical abuse” that could result in a “potential felony,
20190399-CA 7 2021 UT App 85State v. Sundara
sexual assault.” The detective assigned to the protective order
case had “insisted [the alleged victim] come and obtain a
protective order for her safety.” (Quotation simplified.) Based on
the information available to the prosecutor, it was unclear
whether the alleged criminal behavior had occurred while Juror
1 was serving on the jury. Moreover, the prosecutor did not
know if Juror 1 was aware of the police investigation, but he felt
it was safe to “assume that he [was] unaware of the protective
order.” Indeed, the court had been informed that Juror 1 had not
been served with the protective order at that time.
¶24 The prosecutor expressed three concerns about allowing
Juror 1 to continue as a juror. First, “[g]iven the fact that at any
point in time [Juror 1] could be served anywhere, he could be
served tonight, and that may . . . infect the rest of the jury pool.”
Second, the prosecutor was also concerned that Juror 1’s answer
of “No” to Question 22 on the jury questionnaire regarding
whether the potential juror or any member of his family had
ever been accused of a crime other than a minor traffic violation
may have been false. And third, being served could impact Juror
1’s ability to focus and “concentrate on the case at hand.” The
prosecutor summed up his concerns by saying, “[T]he thing that
we all don’t want to have happen here is a mistrial. And if he
were to say something to the entire jury pool, we would then be
in a situation where we’d have to start all over again, and we’re
trying to prevent that from happening when we know that this
inevitably will happen.” Given these concerns, the prosecutor
moved that Juror 1 be removed.
¶25 Counsel opposed removing Juror 1, arguing that it was
speculative whether he was aware of the investigation: “[I]t
appears at least on the strength of what we have before us, he
doesn’t know about [the investigation]. I don’t think he
answered the question falsely at all. There’s nothing in the
reports that I’ve seen, there’s nothing in the petition that would
indicate that he’s aware that this is an ongoing
20190399-CA 8 2021 UT App 85State v. Sundara
investigation . . . .” Insofar as trial strategy was concerned,
Counsel argued that removing Juror 1 impacted the way he
would have selected jurors: “This is a juror that I wanted to
serve and consciously used my [peremptory] challenges [to that
end]. . . . I intended that the people who were alternates be
alternates . . . . And I used my challenges accordingly. And now
to take him out for something that . . . may or may not be the
case, I think would be unfair to Mr. Sundara.”
¶26 The prosecutor and Counsel agreed that any attempt to
interview Juror 1 about his knowledge of the investigation
would “taint him . . . by the mere fact of bringing him in.”
¶27 The court ultimately excused Juror 1 for two reasons.
First, while the court was confident that Juror 1 would not be
served while at the courthouse, it reasoned, “he could be served
at home at any point during the course of the trial and we would
not necessarily have any way of knowing whether he’d been
served or not.” If he were to be served with the protective order,
the court was concerned that Juror 1 “would not be able to
devote his full attention to the proceedings of this case” and that
he might “discuss this issue [of the protective order] with other
members of the jury.” Second, the court was concerned that it
could not “meaningfully inquire” of Juror 1 whether he
“correctly” answered Question 22 “without disclosing to him the
existence of the protective order or the existence of the
investigation” and “potentially having to advise him of his
rights”—events that “everyone agree[d] would disqualify him
from serving as a juror.”
¶28 After articulating its reasoning and acknowledging
Counsel’s objection, the court determined that “the best course”
20190399-CA 9 2021 UT App 85State v. Sundara
was to excuse Juror 1 and have the first alternate, Juror 31,
“serve in his stead.”5 The trial proceeded.
The Flight Instruction
¶29 Counsel also objected to a jury instruction on flight. The
instruction, which is identical to Model Utah Jury Instruction
CR405, read,
Evidence was introduced at trial that the defendant
may have fled or attempted to flee from the crime
scene. This evidence alone is not enough to
establish guilt. However, if you believe that
evidence, you may consider it along with the rest
of the evidence in reaching a verdict. It’s up to you
to decide how much weight to give that evidence.
Keep in mind that there may be reasons for flight
that could be fully consistent with innocence. Even
if you choose to infer from the evidence that the
defendant had a “guilty conscience,” that does not
necessarily mean he is guilty of the crime charged.
See Model Utah Jury Instructions 2d CR405 (2018),
https://www.utcourts.gov/resources/muji/inc_list.asp?action=sho
wRule&id=32#405 [https://perma.cc/6GHL-WNJP].
¶30 Specifically, Counsel argued that the instruction implied
that Sundara “was at the crime scene,” “that he knew that the
5. Juror 1 was told in private that he was dismissed at the end of
the third day of the trial. The remaining jurors were informed of
his departure the following morning. The court told the jurors,
“Juror No. 1 has been excused. You should not concern yourself
with the reasons for that or consider those—or that fact at all in
the context of your deliberations.”
20190399-CA 10 2021 UT App 85State v. Sundara
crime occurred,” and that “he was on his way out of there to
escape,” when his presence at the crime scene was “a fact that’s
in dispute.” Additionally, Counsel argued that “all the evidence
. . . at this point is that there was a car that was described to have
three [individuals of Asian descent] in it, and it was stopped at a
different location than the [community center]. All that other
stuff is almost a judicial instruction that a crime occurred.” The
prosecutor argued, “There was evidence that these three
individuals fled the scene in a vehicle and were stopped by
police at a different location than the homicide scene. As such,
that would constitute flight from the crime scene.” The court
agreed and overruled the objection, noting that without the
instruction, there was a “risk” that the jury would rely only on
the fact that Sundara “was in the vehicle” that allegedly “fled
from the scene of the crime . . . to establish guilt beyond a
reasonable doubt.”
¶31 Following a four-day trial, the jury found Sundara guilty
of murder, and the court sentenced him to a prison term of five
years to life. He appeals.
ISSUES AND STANDARDS OF REVIEW
¶32 Sundara first contends that Counsel performed
ineffectively when he did not file a motion to suppress evidence
obtained from the traffic stop. “When a claim of ineffective
assistance of counsel is raised for the first time on appeal, there is
no lower court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as
a matter of law.” State v. Ramirez, 2019 UT App 196, ¶ 13, 455
P.3d 1082 (quotation simplified).
¶33 Second, Sundara has filed a rule 23B motion for a remand
to supplement the record on appeal with evidence supporting
his claim of ineffective assistance of counsel. See Utah R. App. P.
23B. “A remand under rule 23B is available only upon a
20190399-CA 11 2021 UT App 85State v. Sundara
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.” Ramirez, 2019 UT App 196, ¶ 13
(quotation simplified).
¶34 Third, Sundara argues that the trial court erred when it
dismissed Juror 1 and replaced him with an alternate juror after
it learned that Juror 1 might be served with a protective order
during the trial. We review a court’s decision to replace a juror
with an alternate for abuse of discretion. Cf. State v. Granados,
2019 UT App 158, ¶ 39, 451 P.3d 289 (explaining, in the context
of discussing how to handle sleeping jurors, that “district courts
have considerable discretion in determining how best to resolve
the issue”).
¶35 Fourth, Sundara asserts that the trial court erred in giving
the flight instruction. “We review the trial court’s decision to
give a flight instruction for correctness.” State v. LoPrinzi, 2014
UT App 256, ¶ 10, 338 P.3d 253 (quotation simplified).6
ANALYSIS
I. The Stop
¶36 Sundara first argues that Counsel was ineffective for not
filing a motion to suppress the evidence obtained from the
investigatory stop. “To ensure a fair trial, the Sixth Amendment
of the U.S. Constitution guarantees the right to effective
assistance of counsel.” State v. Campos, 2013 UT App 213, ¶ 23,
6. Sundara also argues that the “cumulative effect of multiple
errors was prejudicial.” But “there are no errors to accumulate
here, rendering the cumulative error doctrine inapplicable in this
case.” State v. Wilkes, 2020 UT App 175, ¶ 20 n.3, 479 P.3d 1142(quotation simplified).
20190399-CA 12 2021 UT App 85State v. Sundara
309 P.3d 1160. A claim of ineffective assistance has two prongs.
“First, the defendant must show that counsel’s performance was
deficient. . . . Second, the defendant must show that the deficient
performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984). “Because failure to establish either
prong of the test is fatal to an ineffective assistance of counsel
claim, we are free to address [Sundara’s] claims under either
prong.” See Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182. Here,
because we conclude that Counsel did not perform deficiently,
we limit our analysis to the first prong.
¶37 To show that Counsel performed deficiently, Sundara
must overcome the presumption that Counsel’s decision not to
file a motion to suppress “falls within the wide range of
reasonable professional assistance.” See Strickland, 466 U.S. at
689. “The court gives trial counsel wide latitude in making
tactical decisions and will not question such decisions unless
there is no reasonable basis supporting them.” State v. Clark, 2004
UT 25, ¶ 6, 89 P.3d 162 (quotation simplified). “Moreover,
deficient performance is not determined in a vacuum; rather, it
involves asking whether the strategy counsel employed was that
of a reasonable, competent lawyer in the real-time context of the
proceeding.” State v. Rosen, 2021 UT App 32, ¶ 9, 484 P.3d 1225(quotation simplified). And “even where a court cannot conceive
of a sound strategic reason for counsel’s challenged conduct, it
does not automatically follow that counsel was deficient. . . .
[T]he ultimate question is always whether, considering all the
circumstances, counsel’s acts or omissions were objectively
unreasonable.” State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350; see
also State v. Ray, 2020 UT 12, ¶ 36, 469 P.3d 871 (“A reviewing
court must always base its deficiency determination on the
ultimate question of whether counsel’s act or omission fell below
an objective standard of reasonableness.”).
¶38 Here it was objectively reasonable for Counsel to believe
that any motion to suppress the evidence obtained from the
20190399-CA 13 2021 UT App 85State v. Sundara
vehicle stop on the night of the murder would have inevitably
failed because Officer had reasonable suspicion to stop
Sundara’s car. And “the failure of counsel to make motions or
objections which would be futile if raised does not constitute
ineffective assistance.” State v. Alzaga, 2015 UT App 133, ¶ 73,
352 P.3d 107 (quotation simplified); see also State v. Makaya, 2020
UT App 152, ¶ 9, 476 P.3d 1025 (“A futile motion necessarily fails
both the deficiency and prejudice prongs of the Strickland
analysis because it is not unreasonable for counsel to choose not
to make a motion that would not have been granted, and
forgoing such a motion does not prejudice the outcome.”).
¶39 While the Fourth Amendment to the United States
Constitution guarantees the right of citizens to be free of
“unreasonable searches and seizures,” see U.S. Const. amend. IV,
an investigatory stop is constitutionally permissible if it is
supported by a “reasonable, articulable suspicion,” see State v.
Anderson, 2013 UT App 272, ¶ 12, 316 P.3d 949 (quotation
simplified). And “a police officer has reasonable, articulable
suspicion when the officer is able to point to specific and
articulable facts which, taken together with rational inferences
from those facts, reasonably warrant the intrusion.” Id.(quotation simplified). However, reasonable suspicion for an
investigatory stop is “more than merely an inchoate and
unparticularized suspicion or hunch that a defendant is
connected to potentially criminal activity. Instead, reasonable
suspicion requires a particularized and objective basis,
supported by specific and articulable facts.” State v. Jervis, 2017
UT App 207, ¶ 18, 407 P.3d 1072 (quotation simplified).
Moreover, “when reviewing a given factual situation to
determine if reasonable suspicion justified a detention, courts
must view the articulable facts in their totality and avoid the
temptation to divide the facts and evaluate them in isolation.”
State v. Markland, 2005 UT 26, ¶ 11, 112 P.3d 507 (quotation
simplified).
20190399-CA 14 2021 UT App 85State v. Sundara
¶40 The facts here were sufficient to support a conclusion that
reasonable suspicion justified the stop of Sundara’s vehicle. For
example, in State v. Markland, 2005 UT 26, 112 P.3d 507, a deputy
responded to a 3:14 a.m. report of screaming near an apartment
complex. Id. ¶ 2. Arriving a few minutes later, the deputy
spotted the suspect walking alone with two bags toward a dead
end of a poorly lit street. Id. Our supreme court explained “that,
viewing the facts in their totality and considering the rational
inferences drawn from those facts, [the deputy’s] detention of
[the suspect] . . . was justified at its inception by a reasonable
suspicion that crime was afoot and that [the suspect] was
connected to that crime.” Id. ¶ 21. The court cited as a “critical
fact” in the case “a contemporaneous report of suspicious
circumstances in the area in which [the suspect] was detained.”
Id. ¶ 25.
¶41 And in State v. Gallegos, 2018 UT App 192, 437 P.3d 388,
aff’d, 2020 UT 19, 463 P.3d 641, an “officer was instructed, based
on eyewitness accounts, to look for Hispanic males,” who had
fled the scene of an assault, “wearing white clothes in a Toyota
Camry on a specific dead-end street.” Id. ¶¶ 5–6, 52. “[W]ithin a
minute or two of receiving the description,” the officer arrived at
the street and found a Hispanic male wearing dark clothes and
standing with two women near a Toyota Camry. Id. ¶ 52. This
court concluded that the matching elements of the description
were “articulable facts giving rise to reasonable suspicion that
[the suspect]—who [was] Hispanic and was right next to the
Camry, on the dead-end street, minutes after the officer had
received the report—was involved with the fleeing suspects.” Id.
¶ 54.
¶42 Here, Officer had received radio dispatch of (1) a
contemporaneous report of criminal activity at the community
center, (2) a general description of the fleeing suspects as male
individuals of Asian descent, (3) a specific location and direction
of travel (heading west on 1300 South), and (4) the mode of
20190399-CA 15 2021 UT App 85State v. Sundara
travel, all occurring shortly after midnight—a time when there
were few people driving in the area. These facts in their totality,
along with reasonable inferences from them, meet the threshold
of reasonable suspicion justifying Officer’s stopping of Sundara’s
car, and “a reasonable, competent lawyer . . . in the realtime
context of trial” could have concluded that Officer had received
sufficient information to form a reasonable suspicion and
decided not to challenge the stop on that basis. See State v. Wall,
2020 UT App 168, ¶ 16, 479 P.3d 355 (quotation simplified).
Accordingly, we conclude that Sundara’s claim of ineffective
assistance fails because Counsel did not render deficient
performance by not seeking to suppress evidence found during
the stop.
II. The Rule 23B Motion
¶43 Next, in his rule 23B motion, Sundara argues that facts not
contained in the record “establish the deficient performance and
prejudice necessary to show” that Counsel’s failure to file a
motion to suppress constituted ineffective assistance of counsel.
Specifically, Sundara seeks to supplement the record with a
police report that states that the information police received that
the suspects were leaving westbound on 1300 South was
provided merely by “some unknown person”7 (Quotation
simplified.) The gist of Sundara’s motion is that “a tip from an
unknown source does not establish reasonable suspicion” and
that Counsel, who was aware of the police report, should have
challenged the stop on the ground that the “tip . . . was
anonymous, unverified, and uncorroborated.” We deny
Sundara’s motion because even if the facts in the affidavit are
7. In his police report, Sergeant wrote that he was talking to the
driver of another vehicle leaving the area shortly after the
stabbing when “some unk person yelled that the susp’s were
leaving W/B on 1300 S.”
20190399-CA 16 2021 UT App 85State v. Sundara
true, they do not support a determination that Counsel was
ineffective. See State v. Higley, 2020 UT App 45, ¶ 24, 463 P.3d 77(“The facts alleged [in a rule 23B motion] must be supported by
affidavits and, when assumed to be true, must establish both
elements of a traditional ineffective-assistance claim.” (quotation
simplified)).
¶44 “It is well-established in this state that the articulable facts
supporting reasonable suspicion may come from an officer’s
own observations as well as external information such as an
informant’s tip via police dispatch . . . .” State v. Kohl, 2000 UT 35,
¶ 13, 999 P.2d 7. And Utah courts have articulated a three-factor
framework for analyzing whether an informant’s tip provides a
basis for reasonable suspicion: “(1) the reliability of the
informant, (2) the detail of the information, and (3) corroboration
of the tip by the officer’s own observations.” Salt Lake City v.
Street, 2011 UT App 111, ¶ 7, 251 P.3d 862; see also Illinois v. Gates,
462 U.S. 213, 230 (1983) (agreeing that “an informant’s veracity,
reliability and basis of knowledge are all highly relevant in
determining the value of” an anonymous tip (quotation
simplified)). Moreover, an informant’s tip is not reviewed in
isolation but is considered in the context of “the totality of the
circumstances.” See Street, 2011 UT App 111, ¶ 7 (quotation
simplified).
¶45 Applying these factors to the allegations in the affidavit,
we conclude that the information Sergeant received about
Sundara and his companions was reliable. First, the tip was not
anonymous but made by an unidentified person who
presumably witnessed Sundara and his companions leaving.
“[T]ipsters who are merely unidentified may still be considered
highly reliable if the facts indicate that they are citizen-
informants.” Id. ¶ 11. And “veracity is generally assumed when
the information comes from an average citizen who is in a
position to supply information by virtue of having been a crime
victim or witness.” State v. Miller, 740 P.2d 1363, 1366 (Utah Ct.
20190399-CA 17 2021 UT App 85State v. Sundara
App. 1987) (quotation simplified). Second, “although the
[unknown person] did not provide extensive detail regarding
the suspected criminal activity, the detail [that person] did
provide was sufficient to support a reasonable suspicion”
because the information concerned the location and direction of
travel of the suspects’ vehicle that was consistent with the
location of the stabbing. See Street, 2011 UT App 111, ¶ 13. Third,
the information regarding the direction of the travel of the
suspects was consistent with Sergeant’s own observations at the
scene of the crime. Sergeant knew the perpetrators were leaving
the community center as evidenced by the fact that he had
already stopped another vehicle that was leaving. See supra note
7. Moreover, “the fact that [Officer] discovered the vehicle in the
location pointed out by the [unknown person] and observed that
the vehicle’s occupants matched the [person’s] descriptions
enhanced the reliability of [the] account.” See id. ¶ 15.
¶46 In sum, even if the additional facts Sundara seeks to add
to the record are true, they do not support a determination that
Counsel was ineffective for not seeking to suppress evidence
found after Sundara’s vehicle was stopped and searched.
Accordingly, we deny his rule 23B motion.
III. The Dismissal of Juror 1
¶47 Sundara next contends that the trial court erred when it
replaced Juror 1 with an alternate juror. Sundara argues that the
defense “wanted [Juror 1] to serve” and had “consciously used
peremptory challenges” to seat Juror 1. (Quotation simplified.)
¶48 Rule 17(g) of the Utah Rules of Criminal Procedure
provides, “If a juror becomes ill, disabled or disqualified during
trial and an alternate juror has been selected, the case shall
proceed using the alternate juror.” Utah R. Crim. P. 17(g). And
rule 18(f) provides that alternate jurors are impaneled “to replace
any jurors who are unable to perform or who are disqualified
from performing their duties” and that alternate jurors “must
20190399-CA 18 2021 UT App 85State v. Sundara
have the same qualifications and be selected and sworn in the
same manner as any other juror.” Id. R. 18(f). Concerning these
rules, the question confronted by the trial court was whether
Juror 1, because of the potential that he would be served with a
protective order during the trial, would be “disqualified” from
performing his duties on the jury.
¶49 It is within the trial court’s discretion to determine
whether a juror is disqualified from serving. State v. Granados,
2019 UT App 158, ¶ 39, 451 P.3d 289 (stating that trial courts
“have considerable discretion” in determining whether a juror
should be disqualified and whether to replace that juror with an
alternate). And “we will find that a trial court has abused its
discretion only if the trial court’s decision was beyond the limits
of reasonability” such “that no reasonable person would take the
view adopted by the trial court.” State v. Arguelles, 2003 UT 1,
¶ 101, 63 P.3d 731 (quotation simplified); accord Shurtleff v. United
Effort Plan Trust, 2012 UT 47, ¶ 13, 289 P.3d 408.
¶50 Here, the trial court’s decision to dismiss Juror 1 was in
no way unreasonable. The court was presented with a unique set
of circumstances. It learned that Juror 1 faced the imminent
service of a protective order concerning alleged criminal activity.
This circumstance created a conundrum for the court. On the one
hand, it raised the possibility that Juror 1 had answered the juror
questionnaire untruthfully. But both parties agreed that the
court could not ask Juror 1 about his answer without tainting
him; knowledge that he was being investigated for criminal
activity may have biased that juror against the State because the
State would investigate and screen any potential charges against
him. On the other hand, doing nothing was not a viable option
for the court. If Juror 1 had been served with a protective order
during the trial, there was a danger that the effect of being
served would prevent him from devoting his full attention to the
trial or that he might discuss his legal troubles with other jurors.
20190399-CA 19 2021 UT App 85State v. Sundara
¶51 Our supreme court has emphasized
that trial judges should err on the side of caution in
ruling on for-cause challenges and that the scope of
judicial discretion accorded a trial judge must be
evaluated in light of the ease with which all issues
of bias can be dispensed by the simple expedient of
replacing a questionable juror with another whose
neutrality is not open to question.
State v. Saunders, 1999 UT 59, ¶ 51, 992 P.2d 951. That is precisely
the course the trial court embraced here. Erring on the side of
caution, the court determined that the risk of Juror 1 being
disqualified (by becoming aware of the investigation either by
being asked about his answer to the questionnaire or by being
served with the protective order) was too great. Thus, we discern
no error in the court’s determination that the “best course” was
to replace Juror 1 with an alternate.
¶52 Moreover, even if the trial court improperly replaced
Juror 1, Sundara has not shown how he was harmed by this
action. Our supreme court has stated, “Even upon finding that a
trial court erroneously excluded a juror for cause, we will not
reverse the jury verdict if we find the error was harmless. To
show prejudice, appellant must demonstrate that the jury that
actually sat for the trial was in some way partial or
incompetent.” State v. Calliham, 2002 UT 86, ¶ 47, 55 P.3d 573(quotation simplified). Sundara has not attempted to show that
the jury with the alternate was partial or incompetent. Not only
did Sundara pass the jury panel for cause, but there is nothing in
the record to suggest that the alternate was in any way biased or
incompetent.
¶53 Even though Sundara suggests that he specifically wanted
Juror 1 to serve on the jury, “[d]efendants are not entitled to a
jury of any particular composition,” Taylor v. Louisiana, 419 U.S.
522, 538 (1975); rather, they are entitled to an impartial jury
20190399-CA 20 2021 UT App 85State v. Sundara
under the Sixth Amendment, see U.S. Const. amend. VI.
Accordingly, we reject Sundara’s contention that Juror 1 should
not have been excused because he was specifically chosen—
owing to his expressed preference for forensic evidence—as
being favorably inclined to Sundara’s defense. “It must always
be remembered that a party, even in a criminal case, is not
entitled to a jury which is favorable . . . , but only to one which is
fair and impartial. The right to an impartial jury is one of
rejection and not of selection.” United States v. Kline, 221 F. Supp.
776, 782–83 (D. Minn. 1963); see also Press-Enterprise Co. v.
Superior Court, 464 U.S. 501, 510 n.9 (1984) (“The [jury selection]
process is to ensure a fair impartial jury, not a favorable one.”);
United States v. Gjokaj, 555 F. App’x 581, 586 (6th Cir. 2014)
(“[The] defendant’s perception that the dismissed juror was
favorable to his defense does not mean he was prejudiced by
replacing her with the impartial alternate. [The] defendant had
the right to an impartial jury, not a favorable one.” (quotation
simplified)).
¶54 In sum, we conclude that the trial court did not exceed its
discretion in dismissing Juror 1 and replacing him with the
alternate after it learned of the imminent service of the protective
order.
IV. The Flight Instruction
¶55 Lastly, Sundara presents a bifurcated argument that the
flight instruction given by the court was improper.
¶56 Sundara first contends that the flight instruction was
improper under existing law because the only evidence of
flight—Friend’s testimony that the men ran after the stabbing—
was direct, making the flight instruction “confusing and
unnecessary.” Put another way, Sundara argues that the flight
instruction was improper because
20190399-CA 21 2021 UT App 85State v. Sundara
[t]he jury did not need an instruction about how to
draw inferences from this direct evidence. . . . The
jury did not need guidance to infer that stabbing
someone and running away is evidence of guilt. . . .
[Friend] offered direct, not circumstantial, evidence
of Sundara’s guilt. A flight instruction is only
useful to explain the inferences of flight as
circumstantial evidence of guilt.
¶57 But the giving of a flight instruction is not predicated on
the evidence of flight being necessary to assist the jury in making
an inferential leap. “Flight instructions are proper when
supported by the evidence, meaning the instructions bear a
relationship to evidence reflected in the record.” State v. LoPrinzi,
2014 UT App 256, ¶ 25, 338 P.3d 253 (quotation simplified). And
“a flight instruction bears a relationship to the evidence reflected
in the record if the flight occurred after the commission of the
crime charged.” Id. (quotation simplified).
¶58 Here, there is no question that evidence supported the
prosecution’s theory that Sundara fled the scene. Friend testified
explicitly that the three men ran away shortly after the stabbing.
In addition, Sundara himself stated that he was at the
community center and was later stopped by the police.
Moreover, there is no question that the evidence suggested that
Sundara left the scene “after the commission of the crime.” See id.(quotation simplified).
¶59 Sundara cites State v. Howland, 761 P.2d 579 (Utah Ct.
App. 1988), for the proposition that “confusing and
unnecessary” flight instructions are erroneous and likely to
mislead the jury. Id. at 581. But the fact pattern in Howland makes
that decision of little relevance to this case. In Howland, the
defendant had an altercation with a restaurant manager near the
store’s dumpster. Id. at 580. Having lost the “boxing match,” the
defendant ran away, with the manager in pursuit. Id. The
20190399-CA 22 2021 UT App 85State v. Sundara
manager caught up to the defendant and wrestled him to the
ground, at which point the defendant pulled out a knife. Id. The
defendant was then disarmed, arrested, and charged with
attempted aggravated assault. Id. But he was not charged with
simple assault for the scuffle at the dumpster. Id. The lower court
gave a flight instruction, but this court determined that the flight
instruction was erroneous because “no flight occurred after
commission of the crime charged.” Id. Thus, the reason that the
flight instruction in Howland was “confusing and unnecessary” is
that it misled the jury “into believing that the incident at the
dumpster area—at most a simple assault and a threat of future
harm to persons other than [the manager]—met the elements of
the crime charged, i.e., aggravated assault.” Id. at 581. Because
there was no evidence (namely, a post-crime flight) supporting
the flight instruction, the instruction in Howland was erroneous.
The fact pattern here is just the opposite—flight occurred right
after the commission of the charged crime. So the very
circumstance that made the flight instruction “confusing and
unnecessary” in Howland is altogether absent in the case here.
¶60 Sundara’s second argument is that where the defense has
objected to the giving of a flight instruction, we should
“reconsider [our] precedent sanctioning” them. More forcefully,
Sundara argues that we “should hold that flight instructions are
disfavored and overrule precedent sanctioning flight
instructions any time evidence of flight could be tied to
consciousness of guilt.” However, Utah Supreme Court
precedent approving flight instructions is abundant. See State v.
Franklin, 735 P.2d 34, 39 (Utah 1987) (“[W]hen there is ample
evidence to justify a flight instruction, it is not error to give one
so long as it instructs the jury that there might be reasons for
flight that are fully consistent with innocence of the crime
charged and that even if consciousness of guilt is inferred from
flight, it does not necessarily reflect actual guilt.”), overruled on
other grounds by State v. Robertson, 2017 UT 27, 438 P.3d 491;
accord State v. Bales, 675 P.2d 573, 575 (Utah 1983); see also State v.
20190399-CA 23 2021 UT App 85State v. Sundara
Fairclough, 44 P.2d 692, 697 (Utah 1935) (approving the use of a
flight instruction). And this court lacks the authority to overrule
Utah Supreme Court precedent. See Ortega v. Ridgewood Estates
LLC, 2016 UT App 131, ¶ 30, 379 P.3d 18 (“We are bound by
vertical stare decisis to follow strictly the decisions rendered by
the Utah Supreme Court.” (quotation simplified)).
¶61 Because there was evidence Sundara fled after the
stabbing occurred, we conclude there was no error in the court
providing a flight instruction to the jury. And we remain bound
by our supreme court’s precedent on this point.
CONCLUSION
¶62 We conclude that Counsel did not render ineffective
assistance when he did not file a motion to suppress evidence
obtained from Officer’s stop of Sundara’s vehicle. We also deny
Sundara’s rule 23B motion because the additional evidence he
seeks to admit does not support a determination that Counsel
was ineffective, and accordingly, a motion to suppress would
not have succeeded. Finally, we find no error in the trial court’s
decision to replace Juror 1 with an alternate juror and to instruct
the jury on flight. Affirmed.
20190399-CA 24 2021 UT App 85