State v. Nelson

This opinion is subject to revision before
publication in the Pacific Reporter
2015 UT 62
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
MARTIN CHRIS NELSON,
Appellant.
No. 20100157
Filed July 31, 2015
Fifth District, Cedar City
The Honorable G. Michael Westfall
No. 081500085
Attorneys:
Sean D. Reyes, Att’y Gen., John J. Nielsen, Asst. Att’y Gen.,
Salt Lake City, for appellee
Elizabeth Hunt, Salt Lake City, for appellant
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE DURHAM, and JUSTICE PARRISH joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶ 1 Martin Chris Nelson shot and killed Chad Grijalva and
Derek Davis. He shot each man eight times—hitting them with all
sixteen bullets in his gun—including an “immediately
incapacitating” shot to the side of each man’s head. After killing
the two men, Mr. Nelson placed their bodies in a shallow grave,
which he covered with trash, human excrement, and a dead cat.
At trial, Mr. Nelson contended he had acted in self-defense. The
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Opinion of the Court
jury disagreed and convicted Mr. Nelson of two counts of
aggravated murder. He was sentenced to two consecutive terms
of life in prison without the possibility of parole. Mr. Nelson now
appeals and brings seven claims of ineffective assistance of
counsel (IAC). Because we hold that defense counsel either did
not perform deficiently or that Mr. Nelson was not prejudiced by
any alleged deficiencies, we affirm.
BACKGROUND
¶ 2 On the date of the murders, October 24, 2007, Mr. Nelson
was living in a trailer on an isolated piece of property in the
sagebrush desert near Beryl, Utah.1 The property was known as
“the ranch.” When Mr. Nelson’s friends would visit him there,
they would ride four-wheelers and motorcycles, “party,” “[get]
drunk,” and “[do] drugs,” including methamphetamine (meth)
and marijuana.
¶ 3 Mr. Grijalva was one such friend. But after a plan
to grow psychedelic mushrooms together “didn’t work out very
well,” Mr. Nelson became angry with Mr. Grijalva.
Approximately six months before the murders, Mr. Nelson began
“ranting” and “raving” about Mr. Grijalva to a mutual friend, Ty
Taylor. Mr. Nelson told Mr. Taylor, “I am going to kill Chad
[Grijalva] one day. And I am going to go out and start killing
folks. And you are going to see me on the news.” But after some
time passed, Mr. Nelson and Mr. Grijalva apparently reconciled
and “started drinking and partying, same as usual.”
¶ 4 Sometime during the late afternoon on the day of the
murders, Mr. Grijalva and Mr. Davis headed to the ranch to pick
up some meth that Mr. Nelson had agreed to obtain for
Mr. Grijalva. That morning, Mr. Nelson told his friend Cory
Morrison that some people were coming over who he did not
“really want to deal with.” He also called his friend Richie
Mathiesen and said, “I need you to talk me out of killing some
folks.” Indeed, Mr. Nelson acknowledged at trial that he was
“mad” at Mr. Grijalva, and that, among the various debts between
them, Mr. Nelson “owed [Mr. Grijalva] for some mushrooms.”
1 On appeal, we recite the facts in the light most favorable to
the jury’s verdict. State v. Geukgeuzian, 2004 UT 16, ¶ 2, 86 P.3d
742.
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Additionally, Mr. Nelson was suspicious of Mr. Davis, whom he
did not know very well. Mr. Nelson was not keen to have
“anybody at the ranch that [he] didn’t know.” He was also
concerned because he had been told by a friend that Mr. Davis
was “a snitch.”
¶ 5 After Mr. Grijalva and Mr. Davis arrived at the ranch,
Mr. Nelson gave Mr. Grijalva the meth he had purchased for him.
But Mr. Grijalva was “upset” by the amount and told Mr. Nelson
it was not enough. To mollify Mr. Grijalva, Mr. Nelson brought
out some of his own stash as a “peace offering.” Mr. Grijalva
wanted to smoke the meth out at the ranch because he could not
smoke freely at his own home. Despite his misgivings about Mr.
Davis, Mr. Nelson agreed and the three went into the trailer and
began to get high. According to Mr. Nelson, when the pipe was
passed to Mr. Grijalva, Mr. Grijalva said it was empty. Mr. Nelson
testified he became angry because “it’s a common trick between
meth heads” to steal drugs in a group setting by claiming the pipe
is empty. Mr. Nelson explained he was “mad because it was
empty” and “started raging.” At this point, the State’s and
Mr. Nelson’s stories significantly diverge.
¶ 6 Mr. Nelson testified that as he got up to put his drugs
away, Mr. Davis hit him in the face and then Mr. Davis and
Mr. Grijalva attacked him inside the trailer. After a struggle,
Mr. Nelson said he grabbed his gun—a .22 caliber, lever-action
Henry rifle—and “just started shooting.” He told the jury that as
he was shooting, “nobody was stopping from hitting me. Nobody
was stopping anything that they were doing.” He also asserted he
was on the floor during the assault and could only see out of one
eye because his other eye was “full of blood.” During this time,
Mr. Nelson stated that he was “turn[ing] every which way” and
“shooting all over the place,” as he was getting “kick[ed] in the
face” by his assailants. “[T]owards the end,” Mr. Nelson testified,
“Derek, I thought he jumped on me. But, at the last, I realized he
was dead. And Chad was dead. And they were still on top of me.”
Despite this allegedly tumultuous scene, Mr. Nelson hit
Mr. Grijalva and Mr. Davis with every bullet in his gun (eight
shots each), including what would have been an “immediately
incapacitating” shot to the side of each man’s head. When
questioned about that feat, Mr. Nelson claimed that it would have
been “pretty tough not to in that little tiny area.” But the medical
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examiner found no evidence of gunfire stippling or soot on either
of the victims, evidence that would corroborate a melee of the sort
described by Mr. Nelson.
¶ 7 After shooting Mr. Grijalva and Mr. Davis, Mr. Nelson
set about to cover up the murders. He dragged the bodies out of
the trailer and dumped them in a nearby hole he had been
digging for a septic tank. There was blood all over the carpet in
the trailer, so Mr. Nelson tore it out and disposed of it. He later
painted the floor of the trailer. And after learning that the sheriff
was looking for Mr. Davis’s white pickup truck, Mr. Nelson began
dismantling it in an effort to “get it all cut up and get rid of it all.”
¶ 8 Upon receiving reports that Mr. Grijalva and Mr. Davis
had gone missing, the police began to investigate their
disappearance. Iron County Sheriff Mark Gower learned that the
last phone call Mr. Grijalva had made was to Mr. Nelson, so he
began to search for both Mr. Nelson and the missing white truck.
On November 16, 2007, Sheriff Gower brought Mr. Nelson in and
questioned him about his contact with Mr. Grijalva on the day
Mr. Grijalva went missing. During the interview, Mr. Nelson lied
and said Mr. Grijalva had never showed up to meet him that day.
Shortly thereafter, the investigators obtained a search warrant for
the ranch. 2 During the search, they confirmed the presence of a
partially-dismantled white truck that appeared to match
Mr. Davis’s missing one. The investigators then obtained a second
search warrant for a more thorough search of the ranch, which
2 Sheriff Gower first went to the ranch to arrest Mr. Nelson on
an outstanding warrant for failure to register as a sex offender.
While in the process of arresting him, the sheriff conducted a
“protective sweep” in which he noticed the partially-dismantled
white truck in Mr. Nelson’s makeshift garage. Due to concerns
about the legality of that warrantless discovery, law enforcement
applied for and obtained a search warrant without relying on the
presence of the truck. Before the trial, defense counsel moved to
suppress the evidence obtained during the search as tainted by an
improper search. The court denied the motion based on both the
independent source doctrine and because it concluded that the
protective sweep was not improper. Mr. Nelson does not
challenge that ruling on appeal.
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they executed early in the morning on November 17. During the
second search, cadaver dogs alerted in Mr. Nelson’s shed. The
sheriff’s team began digging and discovered Mr. Grijalva and
Mr. Davis’s bodies under a pile of trash and human waste.
¶ 9 The State charged Mr. Nelson with two counts of
aggravated murder and one count of theft by receiving a stolen
motor vehicle. The defense argued that Mr. Nelson had acted in
self-defense. After a seven-day trial, the jury found Mr. Nelson
guilty of all three crimes, and the trial judge sentenced him to two
consecutive terms of life in prison without the possibility of parole
on the aggravated murder counts, as well as a concurrent sentence
of one to fifteen years on the theft count. Mr. Nelson timely
appealed, asserting six IAC claims. This court granted
Mr. Nelson’s motion for remand under rule 23B of the Utah Rules
of Appellate Procedure and stayed the appeal. Following a
hearing, the district court made factual findings and rejected all
six of Mr. Nelson’s claims. He now appeals the rejection of those
claims and adds a seventh IAC claim.
STANDARD OF REVIEW
¶ 10 In order to prevail on his IAC claims, Mr. Nelson must
show both (1) “that counsel’s performance was deficient” and
(2) that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 668, 687, 694
(1984). To satisfy this test, Mr. Nelson “must overcome the strong
presumption that [his] trial counsel rendered adequate assistance
by persuading the court that there was no conceivable tactical basis
for counsel’s” acts or omissions. State v. Clark, 2004 UT 25, ¶ 6, 89
P.3d 162 (alteration in original) (citation omitted) (internal
quotation marks omitted). He must also prove “that, absent those
acts or omissions, there is a ‘reasonable probability’ of a more
favorable result.” State v. Chacon, 962 P.2d 48, 50 (Utah 1998). And
“[t]he proof that such [acts or] omissions prejudiced [him] must
be a demonstrable reality and not a speculative matter.” Id.
(internal quotation marks omitted).
¶ 11 In evaluating whether Mr. Nelson has carried this
“heavy burden,” with respect to the six IAC claims that were the
subjects of the rule 23B hearing, id., we defer to the district court’s
findings of fact, “but review its legal conclusions for correctness,”
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State v. Wright, 2013 UT App 142, ¶ 10, 304 P.3d 887 (internal
quotation marks omitted); see also State v. Taylor, 947 P.2d 681, 685
(Utah 1997). With respect to Mr. Nelson’s seventh IAC claim,
which he raises for the first time on appeal, we have determined
that the factual record before us is adequate and therefore proceed
to evaluate this claim “as a matter of law.” Chacon, 962 P.2d at 50.
ANALYSIS
¶ 12 The Sixth Amendment to the United States Constitution
grants a criminal defendant the right to have “the Assistance of
Counsel” for his defense. And the United States Supreme Court
has clarified that “the right to counsel is the right to the effective
assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686
(1984) (internal quotation marks omitted). A successful IAC claim
must pass the two-part Strickland test, which requires that the
defendant show both deficient performance and prejudice. Id. at
687; accord Menzies v. State, 2014 UT 40, ¶ 75, 344 P.3d 581. Both
elements must be present, and if either is lacking, the claim fails
and the court need not address the other. Menzies, 2014 UT 40,
¶ 78.
¶ 13 Mr. Nelson contends his trial counsel provided
ineffective assistance in seven distinct ways: (1) by reenacting
Mr. Nelson’s version of the shooting in an improper manner;
(2) by introducing evidence that Mr. Nelson was on probation at
the time of the murders; (3) by failing to impeach two police
officers with potentially inconsistent testimony about the
discovery of the dismantled truck; (4) by failing to use certain
blood evidence found in the trailer; (5) by failing to discover the
presence of a bullet in a mattress; (6) by failing to ensure proper
jury selection; and (7) by failing to object to certain jury
instructions. All of Mr. Nelson’s IAC claims fail due to a lack of
deficient performance, prejudice, or both, and we therefore affirm
his convictions. 3
3 As is manifest from our discussion below of each of
Mr. Nelson’s claims, it is more accurate to say that nearly all, if
not all, fail both parts of the Strickland test. However, for analytical
purposes, we have categorized them by their principal failing,
namely lack of deficient performance or lack of prejudice.
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I. FOR HIS FIRST THREE IAC CLAIMS, MR. NELSON
FAILS TO SHOW THAT HIS TRIAL ATTORNEYS
PERFORMED DEFICIENTLY
¶ 14 To establish that his attorneys rendered deficient
performance, Mr. Nelson must “overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy.” Strickland v. Washington, 466 U.S.
668, 689 (1984) (internal quotation marks omitted). He must
convince us that, despite the fact that “counsel is strongly
presumed to have rendered adequate assistance,” counsel’s acts
or omissions nevertheless fell “outside the wide range of
professionally competent assistance.” Id. at 690. In short, the
question of deficient performance “is not whether some strategy
other than the one that counsel employed looks superior given the
actual results of trial. It is whether a reasonable, competent lawyer
could have chosen the strategy that was employed in the real-time
context of trial.” State v. Barela, 2015 UT 22, ¶ 21, 349 P.3d 676.
Mr. Nelson first claims that counsel rendered ineffective
assistance by (1) staging a demonstration of the shooting at trial,
(2) introducing evidence that Mr. Nelson was on probation, and
(3) failing to impeach the police with potentially inconsistent
testimony concerning the discovery of the dismantled truck. We
address each in turn.
A. Reenactment of the Shooting at Trial
¶ 15 During the trial, defense counsel demonstrated
Mr. Nelson’s version of events. They had Mr. Nelson lie on the
ground with the gun in his hand while they acted the parts of the
two victims. During the demonstration, Mr. Nelson was allowed
to hold the murder weapon and was encircled by courtroom
security and guards. Mr. Nelson now argues that the
demonstration was unreasonable trial strategy that was
“inaccurate and prejudicial in many respects.” He contends that,
instead of helping his defense, it “gave the jurors a vision of [him]
attacking his own attorneys” “surrounded” by guards—which he
argues sent a message that he was dangerous and “in custody.”
He also argues that the demonstration failed to show the small
confines of the trailer, which he contends was important to
explain how he was able to shoot the victims with every bullet in
his gun. Additionally, he points out that the demonstration was
inaccurate because his trial attorneys were significantly “smaller
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and older” than the victims and were not “attacking [him] in the
midst of a battle over methamphetamine while they were drunk
and high.”
¶ 16 While, in hindsight, defense counsel’s decision to
present the jury with the reenactment might appear to have been
ill-advised, our scrutiny of counsel’s performance is “highly
deferential.” Strickland, 466 U.S. at 689. When evaluating counsel’s
choices after those efforts have “proved unsuccessful” it is “all too
easy” for a reviewing court “to conclude that a particular act . . .
was unreasonable.” Id. Therefore, and as we have previously
noted, we must make “‘every effort’” to “‘eliminate the distorting
effects of hindsight’” and “‘indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.’” State v. Lucero, 2014 UT 15, 328 P.3d 841
(quoting Strickland, 466 U.S. at 689). To this end, we give 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
(internal quotation marks omitted). Under this standard, we
cannot conclude that Mr. Nelson’s attorneys’ decision to have him
reenact his version of events for the jury constituted deficient
performance.
¶ 17 We agree with the district court that defense counsel
reasonably accepted the possible downside of showing
Mr. Nelson surrounded by guards in an attempt to give the jury a
“realistic depiction of Defendant’s version of events.” First, as the
court noted, Mr. Nelson had been attended by guards
“throughout the entire trial,” so the jury seeing him in the
presence of guards would not have been particularly notable.
Second, defense counsel could have reasonably strategized that
the demonstration would show the jury that Mr. Nelson’s story
could be reconciled with the physical evidence. Mr. Nelson
suggests that the fact that the demonstration was unrehearsed
made it an unreasonable strategy. But counsel are regularly called
upon to quickly make strategic decisions during the course of an
unpredictable trial. See Barela, 2015 UT 22, ¶ 21. The difficulty
inherent in second-guessing those decisions is precisely why we
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grant counsel such wide latitude in implementing trial strategy.
See Clark, 2004 UT 25, ¶ 6. 4
¶ 18 We conclude that trial counsel’s decision to stage the
reenactment did not fall below an objective standard of
reasonableness. Because counsel did not perform deficiently, we
need not address prejudice, and this IAC claim fails. State v.
Crosby, 927 P.2d 638, 644 (Utah 1996).
B. Introduction of Evidence that Mr. Nelson Was on Probation
¶ 19 Defense counsel presented the jury with evidence that
Mr. Nelson was on probation. 5 On appeal, Mr. Nelson argues that
this was an objectively unreasonable decision. We disagree. It was
reasonable that counsel would seek to provide the jury with a
satisfactory explanation for Mr. Nelson’s behavior following the
murders. The jury only heard that Mr. Nelson was on probation;
they did not hear the nature of the underlying crime.
¶ 20 Because Mr. Nelson admittedly lied to police when he
was interviewed following the disappearance of Mr. Grijalva and
Mr. Davis, defense counsel needed to provide a plausible
explanation for his dishonesty. Counsel also needed to explain
Mr. Nelson’s behavior following the killings. It was critical to
explain to the jury why, after shooting each man eight times,
Mr. Nelson would deposit the victims’ bodies in a shallow hole;
cover them with several layers of dirt, trash, and human waste;
rip up and burn the bloody carpet; repaint the trailer floor;
dismantle the truck the victims arrived in; and then lie about it to
investigators, acquaintances, and family.
¶ 21 Mr. Nelson argues that letting the jury know of his
probation status was unreasonable because there was “ample
4 See also Harrington v. Richter, 562 U.S. 86, 105 (2011)
(explaining that courts give wide deference to the choices of
counsel because “[u]nlike a later reviewing court, the attorney
observed the relevant proceedings, knew of materials outside the
record, and interacted with the client, with opposing counsel, and
with the judge”).
5 It is not clear from the record or the parties’ briefs whether
Mr. Nelson was on probation or parole. Because it does not affect
our analysis, and for clarity, we refer to it as probation.
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unavoidable evidence explaining why [he] did not call the police
and lied about what happened”—namely, the fact that he was
growing marijuana in his trailer and “regularly consumed
methamphetamine, a drug that often causes paranoia.” But
counsel could reasonably have concluded that Mr. Nelson’s drug
activity alone was not enough to justify Mr. Nelson’s extreme
actions following the murders, or his multiple instances of
dishonesty to police and others concerning the events of
October 24, 2007. 6
¶ 22 Mr. Nelson’s trial attorneys faced an immense challenge
to provide the jury with a plausible explanation for his dishonesty
and suspicious behavior following the murders. Under these
circumstances, we cannot say that there was “no reasonable basis”
for counsel to conclude that the benefits of telling the jury that
Mr. Nelson was on probation outweighed the risks. Clark, 2004 UT
25, ¶ 6.
C. Failure to Impeach Police Testimony
¶ 23 Mr. Nelson argues that his trial counsel’s failure to
impeach Sheriff Gower and Detective Edwards with evidence that
they “lied” about when they discovered Mr. Davis’s truck at the
ranch amounts to ineffective assistance. For support, Mr. Nelson
argues that the officers suggested at the preliminary hearing that
they discovered the truck pursuant to a valid search warrant
executed the evening of November 16, when, in fact, Sheriff
Gower actually first discovered the truck earlier that afternoon
when he was at the ranch to arrest Mr. Nelson on a warrant for
failure to register as a sex offender. 7 We hold that defense counsel
reasonably decided not to attempt to impeach the officers
6 For example, it certainly would have been easier for
Mr. Nelson to hide his marijuana grow operation than the bodies
of two full-grown men, and defense counsel could have
reasonably strategized that even the paranoia caused by
methamphetamine would not be enough to explain Mr. Nelson’s
behavior following the murders.
7 Defense counsel made a motion to suppress the discovery of
the truck, but it was denied. Mr. Nelson has not challenged that
ruling. See supra ¶ 8 n.2.
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concerning whether they discovered the truck earlier or later in
the day on November 16.
¶ 24 Sheriff Gower and a team of law enforcement officers
first went to the ranch to arrest Mr. Nelson on an arrest warrant
for failure to register as a sex offender at about 1 p.m. on
November 16. While conducting a “protective sweep,” they
noticed a partially dismantled white pickup truck. The team
returned later that evening with a search warrant, and again in
the early morning hours of November 17. During the subsequent
searches, investigators confirmed that the truck was Mr. Davis’s
and ultimately discovered the victims’ bodies.
¶ 25 Mr. Nelson argues that at the preliminary hearing Sheriff
Gower “testified untruthfully” about this discovery, but a close
review of the record reveals he did not. Mr. Nelson asserts that
Sheriff Gower said he “found Davis’[s] truck on the 17th”—but
our review of the record failed to unearth such a statement. At
worst, Sheriff Gower was evasive on the topic of the truck. In
response to a question about when he discovered evidence
suggesting Mr. Nelson’s involvement in the crime, Sheriff Gower
responded that the law enforcement team “eventually” found a
truck matching Mr. Davis’s. Mr. Nelson is correct that Sheriff
Gower further testified that he left the ranch “almost
immediately” after arresting Mr. Nelson. This was perhaps not
quite accurate, because the sheriff had time to conduct the
“protective sweep” and notice the suspicious-looking white
pickup. But even if these statements were untruths by omission,
counsel could reasonably have chosen not to use them. The jury
was very unlikely to view these relatively innocuous remarks as
flagrant police dishonesty or misconduct. And we certainly do not
agree that Sheriff Gower’s testimony would, as Mr. Nelson claims,
“demonstrat[e] the unreliability of the prosecution” or that they
were “willing[] to compromise themselves to secure Nelson’s
conviction.”
¶ 26 The same is true of Detective Edwards’s testimony at the
preliminary hearing. Detective Edwards said that seeing the white
truck in the early morning hours of November 17 “took [his]
breath away.” Mr. Nelson argues that the detective was being
dishonest because he failed to mention that Sheriff Gower had
seen the truck the day before during the 1 p.m. “protective
sweep.” But as the State points out, “there is nothing inherently
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dishonest or contradictory about Detective Edwards’s breath
being taken away by seeing the truck” where “getting a break in a
potential double murder” almost certainly “qualifies as a
breathtaking event.”
¶ 27 In any event, after having their motion to suppress
denied, defense counsel could reasonably have made a strategic
choice not to bring up the details of the timing of law
enforcement’s discovery of the truck because it would not help
Mr. Nelson’s overall theory of the case and could irritate the jury
as being unimportant or off-topic. 8 We therefore conclude that
Mr. Nelson has not shown deficient performance and his IAC
claim fails.
II. WITH RESPECT TO HIS FOUR REMAINING IAC CLAIMS,
MR. NELSON FAILS TO SHOW THAT HE WAS
PREJUDICED BY THE PERFORMANCE
OF HIS TRIAL ATTORNEYS
¶ 28 Mr. Nelson argues that he also received ineffective
assistance of counsel when his attorneys failed to (1) introduce
certain blood evidence found in the trailer, (2) discover the
presence of a bullet in one of the mattresses, (3) object to the voir
dire process, and (4) object to the jury instructions. In order to
prevail on any of these claims, Mr. Nelson must show that “there
is a reasonable probability that, but for” the alleged errors of
counsel, “the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 694 (1984). It is not enough
“to show that the errors had some conceivable effect on the
outcome of the proceeding.” Menzies v. State, 2014 UT 40, ¶ 91, 344
8 We note also that defense counsel’s decision not to bring up
the fact that, despite their arguable suggestions to the contrary,
the officers really discovered the truck earlier rather than later in
the day was not only a reasonable strategic choice, but was also
unlikely to have affected the verdict. As the district court
explained, “[w]hether the officers lied” about when they
discovered the truck “had little to do with [Mr. Nelson’s] version
of events.” Furthermore, even if defense counsel had chosen to
present the officers’ statements as lies, it is not likely to have
affected the outcome of the trial where the content of the alleged
lies was unrelated to Mr. Nelson’s self-defense theory.
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P.3d 581 (internal quotation marks omitted). Instead, the
“likelihood of a different result must be substantial” and
“sufficient to undermine confidence in the outcome.” Id. (internal
quotation marks omitted). With these standards in mind, we
conclude that even if Mr. Nelson were able to prove that his
attorneys rendered deficient performance with respect to one or
more of his remaining claims, he has failed to show that he
suffered prejudice.
A. Blood Evidence in the Trailer
¶ 29 Mr. Nelson argues that his trial attorneys performed
ineffectively when they failed to present evidence that the police
obtained a “non-negative” field test result for blood on the floor of
the trailer. We hold that Mr. Nelson has failed to show he was
prejudiced, and his claim fails on that ground alone.
¶ 30 Mr. Nelson told his counsel and testified at trial that he
shot the victims inside his trailer in self-defense. In order to
corroborate his story, counsel sought evidence in the trailer by
personally visiting it and by hiring an investigator to visit the
trailer. But Mr. Nelson also admitted to removing the carpet,
disposing of it, and painting the floor of the trailer following the
murders. A 2009 police report explains that crime scene
investigators conducted a field test for the presence of blood on
the trailer floor. Because two of the three chemicals used in the
field test “react with many substances—including human blood,
animal blood, and various vegetables and minerals,” as well as
with themselves, the tests are “presumptive, rather than
conclusive, indications of blood.” As the district court explained,
“[i]nitially, the tests of the trailer yielded negative results for
blood. However, while the chemicals from the first round of tests
were still present, police investigators tested the flooring again”
and got a “non-negative” result. Because the first test was
negative, and because the test chemicals can react if there are
chemicals present from a prior round of testing, the investigators
concluded that they had likely received a “false positive result.”
Following the field tests, large pieces of the trailer floor were sent
to the Utah State Crime Lab, were again tested for blood, and
yielded negative results.
¶ 31 Mr. Nelson argues that his trial counsel should have
highlighted the “non-negative” field test result to impeach police
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testimony that they went over the trailer with a “fine toothed
comb” and found no blood. He also argues that the “non-
negative” field test would have “demonstrated that the police
apparently brought samples to the lab other than those that tested
presumptively positive for blood.” Mr. Nelson claims he was
prejudiced by trial counsel’s failure to use this information,
reasoning that any evidence showing the presence of blood in the
trailer would have supported his theory that the shooting
occurred inside the trailer, which in turn would have supported
his claim of self-defense. We think the connections Mr. Nelson
attempts to draw are far too tenuous. And even accepting, for the
sake of argument, his claim in its most favorable light, defense
counsel’s failure to use the “non-negative” test result still does not
undermine our confidence in the outcome of the trial, and thus
there is no prejudice.
¶ 32 Even if defense counsel could have used the “false
positive” field test result to effectively impeach the detective’s
testimony, 9 and even if the jury believed that there was, in fact,
human blood found on the floor of the trailer, Mr. Nelson still has
not shown prejudice. Whether used substantively or for
impeachment, the “non-negative” blood test result is not
reasonably likely to have affected the result of the trial.
¶ 33 Although the “non-negative” field blood test did not
conclusively show the presence of human blood, 10 even if it had,
the presence of human blood on the floor of the trailer would not
have significantly bolstered the credibility of Mr. Nelson’s
account. Mr. Nelson’s story of self-defense depended on the
shooting happening inside the trailer—but the prosecution’s story
of murder was not dependent on the precise location. Thus, while
the prosecutor did suggest in his closing argument that the
murders might have happened outside the trailer, this was not
9 This is unlikely because the officers could simply explain that
they believed the test was compromised by the presence of the
chemicals from the first test, and that they reasonably relied on
the crime lab’s subsequent report concluding that there was no
blood.
10As explained, the test cannot distinguish between human
blood and other substances, including animal blood.
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critical to his case, he presented no specific evidence of an
alternate location, and he conceded that the murders could have
happened inside the trailer. At best, evidence that there was blood
on the floor of the trailer would have made it more likely that the
murders happened there—but would not have added much to
Mr. Nelson’s claim of self-defense.
¶ 34 Mr. Nelson himself admitted that he thoroughly cleaned
the trailer following the murders, including removing the carpet
and painting the floor. The fact that Mr. Nelson discarded the
bloody carpet and painted the floor of the trailer suggests that the
murders probably did occur in the trailer. But regardless of where
the shootings occurred, there was ample evidence suggesting that
Mr. Nelson did not kill the men in self-defense, and the jury
reasonably rejected his self-serving account. The State’s case
focused on the inconsistencies between the physical evidence,
Mr. Nelson’s story, and Mr. Nelson’s behavior. The State
presented the jury with testimony that Mr. Nelson had threatened
to kill one of the victims at least twice, including on the day of the
murders. It was undisputed that Mr. Nelson hit the victims with
all sixteen bullets in his gun—eight in each man, including a shot
each to the side of the head. During the trial, the State was able to
present scientific and circumstantial evidence suggesting that Mr.
Nelson’s tale of near-blind firing while under attack was not
plausible. Moreover, Mr. Nelson’s dishonesty and seemingly
guilty behavior following the killings also greatly undercut his
claim of self-defense.
¶ 35 Far from creating a substantial likelihood of a different
result, we hold that the evidence of the non-negative field blood
test would not have had any effect on the outcome of the trial.
Accordingly, there was no prejudice and this IAC claim fails.
B. Failure to Discover a Bullet in the Mattress
¶ 36 Mr. Nelson argues that his trial attorneys were
ineffective for failing to discover a bullet lodged in one of the
mattresses in the trailer. His appellate attorney discovered the
bullet in 2011, nearly four years after the murders. The bullet had
the same characteristics as the bullets recovered from the bodies
of the victims. A forensic DNA analyst tested the bullet for DNA
and found a “small amount of human DNA” on it, “most likely
from a female”—but the analyst “could not obtain a DNA
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profile.” The defense’s forensic firearm expert testified at the rule
23B hearing that if he had known about the bullet, he could have
used it to support Mr. Nelson’s version of events. The district
court found that Mr. Nelson had not shown (1) that the bullet was
present in the mattress at the time of trial counsel’s investigation
or (2) where the mattress was located at the time of the homicides.
The district court also concluded that there was no prejudice
because, “even if the bullet had been lodged in the mattress at the
time of the investigation, its discovery would not have aided
[Mr. Nelson’s] self-defense claim.” We agree. 11
¶ 37 As with the field blood test evidence, we see little
likelihood that the discovery of the bullet would have aided
Mr. Nelson’s defense. A number of facts are persuasive on this
point. First, Mr. Nelson admitted regularly shooting his gun both
inside and outside of the trailer. 12 Second, DNA results from the
bullet, while inconclusive, indicated that the DNA was likely from
a female. Finally, as the district court found, the location of that
particular mattress at the time of the murders is unknown and in
that regard the bullet could have equally helped or hurt the
credibility of Mr. Nelson’s story. We therefore reject this IAC
claim as we conclude that Mr. Nelson has failed to show a
reasonable probability that but for his counsel’s alleged failure to
investigate and discover this bullet, the outcome of his trial would
have been different.
11 Additionally, we agree with the district court that defense
counsel did not perform deficiently and reasonably investigated
the case by visiting the crime scene multiple times as well as by
hiring a private investigator “who diligently searched the trailer.”
See Menzies, 2014 UT 40, ¶ 132 (explaining that counsel’s duty is to
conduct an “adequate investigation,” and noting that counsel is
not required to “present evidence that was not obtained even after
an adequate investigation” (internal quotation marks omitted)).
Failure to show either part of the Strickland test is fatal to a claim
of ineffective assistance, and here Mr. Nelson’s claim fails both.
12 Mr. Nelson owned guns and had “fired upwards of a
thousand rounds” out at the ranch, including “inside and outside
the trailer.”
16
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C. Jury Selection
¶ 38 Mr. Nelson argues that his trial attorneys were
ineffective for failing to object to the jury selection procedures. He
contends that the jury selection process violated his right to
empanel a fair and impartial jury through a proper voir dire
proceeding. 13 We disagree.
¶ 39 Mr. Nelson claims that the court’s use of questionnaires
“in lieu of voir dire” violated various constitutional rights,
including the right to a fair and impartial jury, the right to the
presumption of innocence, and the right to a fair trial under the
United States and Utah Constitutions. See U.S. CONST. amends. V,
VI; UTAH CONST. art. I, §§ 7, 10, 12; Coffin v. United States, 156 U.S.
432, 458–59 (1895). We reject this claim as inadequately briefed.
Rule 24(a)(9) of the Utah Rules of Appellate Procedure states that
an appellant’s argument “shall contain the contentions and
reasons of the appellant with respect to the issues presented.” We
have explained that a party fails to adequately brief an issue if the
overall analysis “is so lacking as to shift the burden of research
and argument to the reviewing court.” Ball v. Pub. Serv. Comm’n
(In re Questar Gas Co.), 2007 UT 79, ¶ 40, 175 P.3d 545 (internal
quotation marks omitted). In other words, we require “not just
bald citation to authority but development of that authority and
reasoned analysis based on that authority.” State v. Thomas, 961
P.2d 299, 305 (Utah 1998).
¶ 40 Here, Mr. Nelson has failed to adequately brief and
argue that he was prejudiced by the jury selection process. Rather,
he merely asserts that “legally adequate jury selection . . . is
13 In his opening brief, Mr. Nelson also argued that the closure
of the voir dire proceeding violated his right to a public trial. In
his reply brief, however, he concedes that State v. Butterfield, 784
P.2d 153, 156–57 (Utah 1989), controls and requires him to show
prejudice stemming from his counsel’s failure to object to the
closing of the voir dire proceeding. Because Mr. Nelson essentially
concedes that he “has not even attempted to claim that the
closure” of the jury selection proceeding “had any effect on the
outcome, much less that there was a reasonable likelihood of a
more favorable result,” we reject this claim for failure to show—or
even argue—prejudice. Id. at 157.
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Opinion of the Court
essential to the fairness of the trial.” While we cannot disagree
with that proposition, Mr. Nelson has not explained how his jury
selection process was legally inadequate, or how he was
prejudiced by the method by which the jury was selected. 14
Instead, Mr. Nelson simply asserts that voir dire was improper
because it occurred through written questionnaires and “some of
[the jurors] were not adept at communicating in writing.” We fail
to see how potential jurors’ allegedly poor writing skills would
have so infected the voir dire process as to make it unfair, and in
any event Mr. Nelson does not explain this claim further. His
argument on this point falls well below our briefing standards. See
UTAH R. APP. P. 24(a)(9). Bald assertions and platitudes are not
enough to satisfy an appellant’s burden to provide an adequate
argument on appeal. Moreover, we find no merit in Mr. Nelson’s
assertion that an “anonymous” jury was empaneled. The jury
members were referred to by name as well as number. Because
Mr. Nelson has failed to make a viable argument that the voir dire
process was improper or that he was prejudiced by it, we
accordingly reject this claim.
D. Jury Instructions
¶ 41 Finally, we address Mr. Nelson’s claim that defense
counsel performed ineffectively for failing to object to the jury
instructions. Mr. Nelson alleges a number of errors with regard to
the jury instructions, all of which fail because he has not shown
that he was prejudiced by any of the alleged errors. 15 First, he
contends that the jury was not properly instructed concerning the
14 Just before trial, in a closed proceeding, the court and both
sets of attorneys interviewed the jurors individually and asked
“follow-up questions concerning the answers” the jurors provided
in their questionnaires. As the State points out, there was nothing
particularly unusual about the jury selection procedures in this
case. See, e.g., United States v. Rolle, 204 F.3d 133, 135 (4th Cir. 2000)
(“As is a common practice, potential jurors completed
questionnaires prior to trial . . . .”).
15 While we primarily reject this claim on the lack of prejudice,
we also observe below at some length that, with the possible
exception of instruction 33, Mr. Nelson has not shown an error
that could conceivably form the basis for deficient performance.
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interplay between imperfect self-defense and the lesser included
crimes of murder and manslaughter. To that end, he argues that
instruction 43 (roadmap instruction) improperly ordered the
jury’s deliberations because it “prohibited the jurors from
reaching lesser included verdicts” and “foreclosed” the jury’s
ability to convict of a lesser form of homicide based on imperfect
self-defense. In a related argument, he alleges that the instructions
“conflicted with one another” because the instructions setting
forth the elements of murder and manslaughter did not separately
instruct the jury that it had the option of finding that he acted in
imperfect self-defense. Second, Mr. Nelson asserts that instruction
33 improperly “required” the jurors to be unanimous as to which
variant of murder Mr. Nelson committed—depraved indifference
or serious bodily injury. Third, Mr. Nelson advances a smattering
of other alleged errors.
¶ 42 Even where jury instructions are improper, confusing, or
have the potential to mislead the jury, a defendant who fails to
object and thus claims ineffective assistance of counsel must still
show that he was prejudiced. State v. Hutchings, 2012 UT 50,
¶¶ 23–24, 285 P.3d 1183; State v. Piansiaksone, 954 P.2d 861, 870–71
(Utah 1998). In order to evaluate prejudice, we must “examine
whether the jury’s verdict would have been different had the
potential ambiguity in the jury instructions been removed.”
Hutchings, 2012 UT 50, ¶ 24. As we do this, we must keep in mind
that jurors “do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning in the same way that
lawyers might,” but rather “thrash[]” them out during their
deliberations, using their “commonsense understanding of the
instructions in the light of all that has taken place at the trial.” Id.
¶ 25 (internal quotation marks omitted).
¶ 43 In State v. Hutchings, even though we concluded that
counsel had performed deficiently for failing to object to jury
instructions that “created the potential for confusion and could
have misled the jury,” we rejected the claim of ineffective
assistance on the ground that the defendant had failed to show
prejudice. Id. ¶¶ 23–24, 28. There we found it persuasive that,
upon review of the verdict “in light of the evidence at trial,” it was
“clear that the jury accepted the prosecution’s view” of the case.
Id. ¶ 25. The same is true here.
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STATE v. NELSON
Opinion of the Court
¶ 44 Mr. Nelson challenges the roadmap instruction—
instruction 43—claiming that it was misleading and improperly
required the jury to deliberate in a certain order, thereby
preventing them from being able to consider lesser included
offenses. We have said that jury instructions may not mandate the
order by which the jury must consider the possible verdicts in
such a way as to foreclose the jury’s consideration of the defense
theory. Piansiaksone, 954 P.2d at 869–70. But even if jury
instructions are potentially confusing or improperly order the
jury’s deliberations, the claim may fail for a lack of prejudice. Id.
(“Having concluded that the instructions improperly mandated
an order of deliberation and deprived defendant of the right to
have the jury consider his ‘defense’ of manslaughter, it remains
for us to decide whether these errors merit reversal.”). “‘[A] court
hearing an ineffectiveness claim must consider the totality of the
evidence before the . . . jury.’” Hutchings, 2012 UT 50, ¶ 28 (second
alteration in original) (quoting Strickland, 466 U.S. at 695).
Moreover, we must consider jury instructions “as a whole.” State
v. Brooks, 638 P.2d 537, 542 (Utah 1981). “[T]he fact that one or
more of the instructions, standing alone,” is not as complete or as
accurate as it could have been “is not reversible error.” Id. In other
words, the important consideration is whether the instructions,
taken together, “fairly tender the case to the jury.” Id. The
instructions certainly did that here.
¶ 45 We disagree with Mr. Nelson’s contention that the
roadmap instruction “prohibited” the jurors from reaching lesser
included verdicts of guilt of murder or manslaughter. 16 But even
16 The roadmap instruction did not prohibit the jury from
reaching lesser included offenses on the basis of imperfect self-
defense. The instruction gave jurors a “choice of verdicts with
regard to” the counts of aggravated murder:
1. Guilty of Aggravated Murder; or
2. Not Guilty of Aggravated Murder; or
3. Not Guilty of Aggravated Murder, but guilty of
the reduced charge of Murder because the
defendant caused the death of another under a
reasonable belief that the circumstances provided
a legal justification or excuse for his conduct
although the conduct was not legally justifiable or
(cont.)
20
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Opinion of the Court
if Mr. Nelson’s assertion was correct, there was no prejudice. For
starters, a separate instruction—instruction 36—unambiguously
told the jurors that they could deliberate in any order. 17
¶ 46 Even in the absence of instruction 36, we hold that
Mr. Nelson has failed to show prejudice given (1) that the
elements instructions and instruction 43 all clearly indicated the
State had the burden to prove beyond a reasonable doubt that
Mr. Nelson did not act in self-defense (imperfect or otherwise),
(2) the strong evidence of guilt in the case, and (3) the jury’s
verdict of aggravated murder. Put another way, Mr. Nelson’s
theory at trial was that he acted intentionally and in self-defense—
but by finding him guilty of aggravated murder, the jury
excusable under the circumstances existing at the
time of the offense.
After laying out those three options, the instruction went on to
explain that if the jury found that Mr. Nelson was “[n]ot guilty of
aggravated murder” (option two) and their “reason for finding
the defendant not guilty” was that the State “failed to prove [a
knowing and intentional mens rea],” they were “required to
indicate a verdict with respect to the lesser included offense[s]” of
murder and manslaughter. This instruction was accurate—it
simply told the jurors that their decision may “require[]” them to
enter a verdict for the lesser included offenses. It in no way
foreclosed the jurors from choosing option three, “[n]ot guilty of
Aggravated Murder, but guilty of the reduced charge of Murder
because [the defendant acted in imperfect self-defense].” It also
did not prevent the jurors from considering murder or
manslaughter first. We acknowledge, however, that the
instruction is somewhat confusing in that, by instructing the jury
that it would be “required to indicate a verdict with respect to the
lesser included offense . . . only if” it found Mr. Nelson not guilty
of aggravated murder, it could be read to improperly dictate the
order of the jury’s deliberations.
17 Instruction 36 provided: “You may consider whether the
defendant committed the lesser included offenses of Murder or
Manslaughter before actually reaching a decision on the
Aggravated Murder charges. You are not required to deliberate
on the charges in any particular order.”
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STATE v. NELSON
Opinion of the Court
necessarily rejected Mr. Nelson’s story. And there was ample
evidence in the record to support the verdict. Thus, we do not
believe that any possible confusion wrought by the roadmap
instruction had an effect on the outcome of the trial. And it
certainly “is not enough” to undermine our confidence in the
verdict. Hutchings, 2012 UT 50, ¶ 28.
¶ 47 Next, Mr. Nelson argues that counsel should have
objected to the murder and manslaughter elements instructions
because those instructions did not separately instruct the jurors on
imperfect self-defense. Although it is true that the instructions
specifically explaining how the jury could “convict the defendant
of the lesser included offense[s]” of murder or manslaughter
omitted any reference to imperfect self-defense, instruction 25
amply explained this when it stated that “the effect” of imperfect
self-defense would be “to reduce the crime to a lower degree.”18
Additionally, the instructions setting forth the elements of the
different types of homicide all incorporated instruction 25 by
reference and directed the jury to reduce the relevant conviction
by one degree if it found that the State had failed to disprove
imperfect self-defense. And Mr. Nelson concedes that
instruction 25 accurately expressed the law of imperfect self-
defense. Thus, taken as a whole, the jury was fairly instructed. See
Brooks, 638 P.2d at 542. The fact that certain of the instructions
could have been slightly more accurate or more complete does not
mean they were inaccurate, incomplete, or erroneous—nor does it
mean they were prejudicial. Jensen v. Intermountain Power Agency,
1999 UT 10, ¶ 16, 977 P.2d 474.
¶ 48 We also reject Mr. Nelson’s claim that he received
ineffective assistance on the basis that instruction 33 improperly
18 Instruction 25 explained that “it is a partial defense to a
charge of Aggravated Murder and the lesser included offense of
Murder that the defendant caused the death of another under a
reasonable belief that the circumstances provided a legal
justification or excuse for his conduct although the conduct was
not legally justifiable or excusable . . . . The effect of the defense is
to reduce the crime to a lower degree. In this case, it would reduce a
charge of Aggravated Murder to Murder and would reduce the lesser
included offense of Murder to Manslaughter.” (Emphasis added.)
22
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Opinion of the Court
required unanimity on only one of the theories of murder. The
jury was instructed that they could convict of murder if they
found that Mr. Nelson committed a “clearly dangerous” act with
intent “to cause serious bodily injury” or acted with “a depraved
indifference to human life.” The jury was not required to
unanimously pick one of these variants, but need only have been
unanimous that either one of those circumstances occurred. State
v. Russell, 733 P.2d 162, 165–69 (Utah 1987). To the extent that the
instructions suggested otherwise—that unanimity was required
on a variant—they were incorrect. Nevertheless, we hold that
Mr. Nelson did not suffer prejudice because the jury convicted
him of aggravated murder—not murder—thus unanimously
determining that Mr. Nelson “intentionally or knowingly . . .
[c]aused the death” of his two victims and did not act with a
reasonable belief that the circumstances provided any justification
for his conduct.
¶ 49 Lastly, Mr. Nelson makes a series of other objections that
are not well explained and ultimately are unavailing; 19 most
obviously because he cannot show prejudice. As the State argued,
“[r]ather than looking at the instructions as a whole,” Mr. Nelson
merely “points to potential conflicts in isolated instructions” and
“does not acknowledge other instructions that resolved those
19 For example, Mr. Nelson argues that “imperfect self-defense
was not defined correctly in the aggravated murder and murder
instructions” because they omitted the requirement that
Mr. Nelson’s “reasonable belief that his actions were justified was
incorrect.” This argument lacks merit. First, the instructions
directed the jurors to the definition of imperfect self-defense, and
second, there was no prejudice here where the jury necessarily
determined that Mr. Nelson did not have a reasonable belief that
his actions were justified. It does not matter that the various
murder instructions failed to note that imperfect self-defense
requires the defendant’s reasonable belief to have been incorrect,
especially where they referenced, as Mr. Nelson concedes, the full,
accurate definition of imperfect self-defense in instruction 25.
Moreover, the jury was fully instructed on the elements of regular
self-defense, and thus knew that it is a complete defense to
homicide if a person acts under a reasonable belief that he or she
is justified in using force, and is in fact so justified.
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STATE v. NELSON
Opinion of the Court
conflicts.” He alleges error “without showing it” and fails to
develop many of his arguments. In arguing IAC in the jury
instructions, Mr. Nelson peppers his brief with conclusory
statements, asserting, for example, that the instructions were
“legally incorrect” and “conflicting,” but failing to show how they
were incorrect, or how the alleged errors actually constituted
deficient performance or prejudice. The deficiencies in
Mr. Nelson’s briefing arguably fall short of the Utah Rules of
Appellate Procedure’s directive that an appellant must provide
“the contentions and reasons of the appellant with respect to the
issues presented.” UTAH R. APP. P. 24(a)(9); see also State v. Nielsen,
2014 UT 10, ¶ 34, 326 P.3d 645. In that regard, Mr. Nelson has
failed to persuade us, in large part because he has not adequately
briefed a plausible claim of IAC stemming from these jury
instructions. See Salt Lake Cnty. v. Butler, Crockett & Walsh Dev.
Corp., 2013 UT App 30, ¶ 37 n.5, 297 P.3d 38; B.A.M. Dev., L.L.C. v.
Salt Lake Cnty., 2012 UT 26, ¶ 35 n.8, 282 P.3d 41 (“We refuse to
become [a party’s] advocate by formulating arguments on its
behalf or translating its problematic arguments into plausible
ones. ”). Suffice it to say, we have thoroughly reviewed each of
Mr. Nelson’s claims of IAC in the jury instructions and have
concluded that they fail to meet the stringent Strickland standard.
466 U.S. at 687.
¶ 50 Because the jury rejected Mr. Nelson’s story of self-
defense and instead convicted him of aggravated murder, any
slight confusion in the instructions was not reasonably likely to
have affected the verdict. In sum, we do not believe “that there is
a reasonable probability of a different outcome had the jury
instructions been rephrased or clarified,” and Mr. Nelson’s claim
fails. Hutchings, 2012 UT 50, ¶ 28.
CONCLUSION
¶ 51 Mr. Nelson has not proven that he received ineffective
assistance of counsel in any aspect of his trial. Each of his seven
claims fails at least one part of the Strickland test. 466 U.S. 668, 687,
694 (1984). We hold that Mr. Nelson has not shown that his
counsel performed deficiently by (1) acting out a live
demonstration of the defense theory at trial, (2) introducing
evidence that Mr. Nelson was on probation, or (3) failing to
confront police with their arguably misleading preliminary-
hearing testimony. Additionally, we conclude that he has failed to
24
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Opinion of the Court
show prejudice stemming from defense counsel’s (1) decision not
to present evidence of the “non-negative” field test of the flooring,
(2) failure to discover a bullet lodged in a mattress, (3) failure to
object to the voir dire process, or (4) failure to object to the jury
instructions. We therefore affirm Mr. Nelson’s convictions.
25