Mulder v. State

2016 UT App 207THE UTAH COURT OF APPEALS
TODD W. MULDER,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20140642-CA
Filed October 6, 2016
Fifth District Court, St. George Department
The Honorable G. Rand Beacham
No. 100502932
Todd W. Mulder, Appellant Pro Se
Sean D. Reyes and Ryan D. Tenney, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGE KATE A. TOOMEY and SENIOR JUDGE PAMELA T.
GREENWOOD concurred. 1
CHRISTIANSEN, Judge:
¶1 Todd W. Mulder appeals the district court’s entry of
summary judgment in favor of the State on his claims for
postconviction relief. We affirm.
1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
Mulder v. State
BACKGROUND
¶2 In 2003, Mulder and an acquaintance from prison,
Campbell, decided to rob the victim’s (Victim) coin shop at the
suggestion of Mulder’s girlfriend, Schlegel. Schlegel and Mulder
had previously been to Victim’s shop, where Schlegel noticed
that Victim had retrieved cash from a safe behind his counter
and that he had left the safe unlocked afterward. Schlegel
brought up the idea of robbing Victim’s coin shop, telling
Mulder and Campbell that Victim was “sitting on a gold mine.”
Campbell suggested that Mulder help him rob the coin shop.
However, after Mulder and Schlegel observed that Victim would
recognize Mulder because he had visited the shop before, they
agreed that Campbell would rob the shop alone and that Mulder
would act as the getaway driver.
¶3 Mulder and Campbell obtained a wig and coat for
Campbell to wear as a disguise, walkie-talkies for
communication, and duct tape and handcuffs to restrain Victim.
Campbell wanted to carry a stun gun, but Mulder insisted that
Campbell instead use a gun that Mulder had recently obtained.
Mulder instructed Campbell to “be a lion” when he went inside
Victim’s shop and to “go in and be forceful, take control of the
situation immediately.”
¶4 On November 24, 2003, Mulder, Campbell, and Schlegel
drove to Mesquite, Nevada, in Schlegel’s truck and checked into
a hotel under Schlegel’s name. The next morning, Campbell
donned his disguise, and Mulder and Campbell then drove to
Victim’s coin shop in St. George, Utah. Mulder dropped
Campbell off a short distance from Victim’s shop.
¶5 Campbell entered Victim’s shop, “pointed the gun and
started . . . yelling and screaming.” Victim was on the phone at
the time and looked at Campbell “kind of funny.” Campbell shot
Victim in the chest. To ensure that Victim could not interfere
20140642-CA 2 2016 UT App 207Mulder v. State
with the robbery, Campbell turned Victim onto his stomach and
handcuffed his hands behind his back. As expected, Victim’s
safe was unlocked. Campbell loaded two duffel bags full of coins
and money, radioed Mulder that he was ready to be picked up,
and left the shop. When Campbell got inside the truck, he told
Mulder that he had shot Victim in the shoulder and not to call
911. Victim died a short time later.
¶6 Mulder and Campbell drove back to the hotel and
divided the stolen coins and money. As part of their share,
Mulder and Schlegel received two one-ounce gold coins and
“lots of silver coins.” About two weeks later, Mulder and
Schlegel went to a pawn shop in Las Vegas, Nevada, to sell one
of the gold coins. Campbell unexpectedly approached them in
the parking lot and told them that he had sold a gold coin at the
same pawn shop earlier that day. Mulder was concerned that
“Campbell [was] throwing the money around” and that he
would attract unwanted attention, so Mulder offered Campbell
$3,000 for the coins that Campbell still had from the robbery.
Mulder told Campbell to “[t]ake the $3,000 and get out of here.
We don’t want to ever know who you are, we don’t want to see
you again.” In the months following the crime, both Campbell
and Mulder were reincarcerated for different offenses, but
neither man had been linked to Victim’s murder. Then, in
October 2004, police officers received a tip that Campbell had
confessed his involvement in the crime to a fellow inmate and
that Campbell had implicated a former cellmate named “Todd”
and Todd’s girlfriend. Following up on this lead, officers were
ultimately led to Mulder, Campbell, and Schlegel. In their
interviews with police, both Campbell and Schlegel admitted
their involvement in the crime and both claimed that Mulder
was involved in the planning and execution of the crime. Mulder
denied any involvement in the crime.
¶7 Mulder was charged with murder, aggravated robbery,
and aggravated kidnapping. At his trial, both Schlegel and
20140642-CA 3 2016 UT App 207Mulder v. State
Campbell testified and implicated Mulder in the crime. The State
also introduced a video of the shooting taken from the coin
shop’s security camera, which showed Campbell approaching
the shop’s door after the shooting and motioning to someone
outside. In addition, the State presented a receipt demonstrating
that Mulder had sold a gold coin at a Las Vegas pawn shop
shortly after the crime.
¶8 Mulder agreed to a stipulated set of facts for his trial,
wherein he acknowledged his prior relationship with Campbell
from their time together in prison and Campbell’s role in the
robbery and shooting. Mulder also testified on his own behalf,
stating that he had been in Victim’s coin shop several times with
Schlegel and that he had heard Schlegel refer to the coin shop as
a “gold mine.” He also testified that he met up with Campbell a
few weeks before the crime and that he was with Schlegel and
Campbell when the idea of robbing the shop first came up.
Mulder claimed that it was Schlegel’s idea to rob the shop and
that she had blackmailed him into participating in the planning
of the crime. Mulder further acknowledged that he helped
Campbell obtain a disguise and that he watched Campbell don
the disguise on the morning of the crime; however, he claimed
that he only did so because of Schlegel’s threats of blackmail.
Mulder claimed that on the morning of the crime, he stayed in
Mesquite and tried to sell stolen jewelry.
¶9 The jury convicted Mulder on all counts. Mulder,
represented by new counsel, raised two claims of ineffective
assistance of counsel on direct appeal: (1) that trial counsel failed
to argue that the aggravated kidnapping charge merged into the
crime of aggravated robbery, and (2) that trial counsel failed to
move to dismiss the aggravated kidnapping charge on grounds of
insufficient evidence. State v. Mulder, 2009 UT App 318U, para. 1.
This court rejected both claims and affirmed Mulder’s convictions.
Id. paras. 2, 6, 10.
20140642-CA 4 2016 UT App 207Mulder v. State
¶10 On August 25, 2010, Mulder filed a petition for
postconviction relief under Utah’s Post-Conviction Remedies
Act (the PCRA). See Utah Code Ann. §§ 78B-9-101 to -405
(LexisNexis 2012). In the petition, Mulder argued that both his
trial counsel and his appellate counsel had been ineffective. In
addition, Mulder alleged that he was entitled to relief based on
newly discovered evidence. In support of his newly discovered
evidence claim, Mulder proffered two affidavits from Campbell,
in which Campbell recanted portions of his trial testimony.
¶11 The district court directed the State to respond only to
Mulder’s ineffective assistance of appellate counsel and newly
discovered evidence claims. The State then moved for summary
judgment on all of Mulder’s claims, and the district court
granted the State’s motion. Mulder now appeals the district
court’s grant of summary judgment to the State.
ISSUES AND STANDARD OF REVIEW
¶12 Mulder contends that the district court erred by granting
the State’s motion for summary judgment on his newly
discovered evidence claim and on six of his ineffective assistance
of appellate counsel claims. “We . . . review the postconviction
court’s grant of summary judgment for correctness.” Honie v.
State, 2014 UT 19, ¶ 28, 342 P.3d 182. “We affirm a grant of
summary judgment when the record shows that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Ross v. State, 2012
UT 93, ¶ 18, 293 P.3d 345 (citation and internal quotation marks
omitted). “In making this assessment, we view the facts and all
reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party.” Id. (citation and internal
quotation marks omitted).
20140642-CA 5 2016 UT App 207Mulder v. State
ANALYSIS
I. Newly Discovered Evidence
¶13 Mulder contends that the district court erroneously
granted the State’s motion for summary judgment on his newly
discovered evidence claim. In support of this claim, Mulder
submitted two affidavits from Campbell, in which Campbell
attested that “Mulder was innocent of all charges” and that
Campbell had previously “lied about [Mulder’s] involvement.”
Campbell also attested that he had “trick[ed]” Mulder and
Schlegel “into going to Mesquite, . . . under false pretenses.” He
further claimed that on the day of the murder, he dropped
Mulder off at a shopping complex in Mesquite and then “went to
St. George and did the armed robbery . . . completely alone.”
¶14 Under the PCRA, a petitioner is entitled to relief based on
“newly discovered material evidence” if (1) neither the
petitioner nor his counsel knew of, or could have discovered
through the exercise of reasonable diligence, the evidence before
or at the time of trial; (2) the material evidence is not merely
cumulative of evidence already known; (3) the material evidence
is not merely impeachment evidence; and (4) “viewed with all
the other evidence, the newly discovered material evidence
demonstrates that no reasonable trier of fact could have found
the petitioner guilty of the offense or subject to the sentence
received.” Utah Code Ann. § 78B-9-104(1)(e) (LexisNexis 2012).
“[U]nder the PCRA, as well as our due process case law, newly
discovered evidence merits post-conviction relief only if the
evidence would create a reasonable doubt as to the defendant’s
guilt.” Medel v. State, 2008 UT 32, ¶ 51, 184 P.3d 1226.
¶15 The district court denied Mulder’s newly discovered
evidence claim, ruling that Mulder’s claim failed because
Campbell’s affidavits, “viewed with all the other evidence,
certainly do[] not demonstrate that no reasonable trier of fact
20140642-CA 6 2016 UT App 207Mulder v. State
would find [Mulder] guilty.” See Utah Code Ann. § 78B-9-
104(1)(e)(iv). Specifically, the district court noted that Campbell
had testified against Mulder at Mulder’s trial and that
Campbell’s affidavits contradicted the trial testimony of both
Campbell and Mulder. The court also noted that Campbell’s
affidavits “would have little credibility because [he] would
clearly be admitting that he lied under oath at [Mulder’s] first
trial.” Finally, the court noted that “the prosecution would still
have the testimony of [Schlegel] and the physical evidence
against [Mulder].”
¶16 To qualify as newly discovered evidence meriting relief,
Campbell’s affidavits must, when considered with existing
evidence, demonstrate that “no reasonable trier of fact could
have reached the jury’s conclusion.” Taylor v. State, 2012 UT 5,
¶ 26, 270 P.3d 471; see also Medel, 2008 UT 32, ¶ 51. Although
Campbell’s affidavits are favorable to Mulder, they are not so
compelling as to demonstrate that no reasonable trier of fact
could have found Mulder guilty. To begin with, Campbell’s
affidavits conflict with his trial testimony and are therefore
wanting in credibility. Among other things, Campbell testified at
trial that (1) Mulder gave him a revolver to use during the
robbery; (2) Mulder was with him when he bought bullets for
the gun and they decided together that “bullets had to go in the
gun” to make it threatening; (3) Mulder helped him obtain a
disguise; (4) Mulder accompanied him to St. George on the day
of the crime; and (5) Mulder dropped him off near Victim’s shop
and then picked him up from Victim’s shop after the shooting
and robbery. The discrepancies between Campbell’s trial
testimony and his subsequent affidavits, see supra ¶ 13, bring his
credibility as a witness into question.
¶17 Moreover, Campbell’s affidavits conflict with other
evidence implicating Mulder, including Mulder’s own trial
testimony. For example, Mulder testified that he and Campbell
bought a wig, beard, and stun gun together and that he
20140642-CA 7 2016 UT App 207Mulder v. State
participated in the crime under a threat of blackmail from
Schlegel. Likewise, Campbell’s affidavits conflict with Schlegel’s
trial testimony. Schlegel testified that Mulder was an active,
voluntary participant in the planning and execution of the crime.
She further testified that Mulder and Campbell obtained duct
tape, a stun gun, and Campbell’s disguise; that she and Mulder
saw Campbell wearing his disguise on the morning of the crime;
that Mulder and Campbell left the hotel together on the morning
of the crime; that when Mulder and Campbell returned to the
hotel, they were carrying two big bags of coins; and that several
days after the robbery, Mulder tried to pawn one of the stolen
gold coins at a Las Vegas pawn shop. And Mulder’s trial
testimony corroborated several portions of Schlegel’s testimony:
Mulder testified that he and Campbell bought Campbell’s
disguise and a stun gun together, that he saw Campbell wearing
his disguise on the morning of the crime, that he left the hotel
with Campbell on the morning of the crime, and that he tried to
pawn one of the stolen gold coins shortly after the robbery.
¶18 In light of the foregoing, a reasonable jury could choose to
disregard Campbell’s affidavits and convict Mulder based on the
other evidence presented at trial. Consequently, Mulder has not
demonstrated that Campbell’s affidavits—when “viewed with
all the other evidence”—are such that “no reasonable trier of fact
could have found [him] guilty.” See Utah Code Ann. § 78B-9-
104(1)(e)(iv). We therefore conclude that the district court did
not err in granting the State’s motion for summary judgment on
Mulder’s newly discovered evidence claim. 2
2. Mulder also argues that under Julian v. State, 2002 UT 61, 52
P.3d 1168, a newly discovered evidence claim does not
automatically fail when one witness recants but one or more
other witnesses do not, see id. ¶ 21 (“Under our case law . . . the
fact that one or more witnesses have not recanted does not
automatically mean that there is not a substantial likelihood of a
(continued…)
20140642-CA 8 2016 UT App 207Mulder v. State
II. Ineffective Assistance of Appellate Counsel
¶19 Mulder contends that the district court erroneously
granted the State’s motion for summary judgment because
appellate counsel rendered constitutionally ineffective
assistance. Specifically, Mulder argues that on direct appeal,
appellate counsel should have raised claims that trial counsel
had been ineffective for (1) failing to request a cautionary jury
instruction, (2) failing to argue that the prosecutor knowingly
presented false testimony from Schlegel, (3) failing to question
the prospective jurors about religion and failing to argue that
(…continued)
different result on retrial.”). However, Julian analyzed this
question under the standard that existed “under the post-
conviction relief case law in effect prior to the enactment of the
PCRA.” See id. ¶ 13. Under that standard, a petitioner was
entitled to relief if there was a “substantial likelihood of a
different result on retrial.” Id. ¶ 21; see also id. ¶ 17
(acknowledging that “our pre-PCRA case law requires that
newly discovered evidence demonstrate more than merely
rendering a different result probable at retrial, but less than
[ensuring] that no reasonable trier of fact could have found the
petitioner guilty of the offense”). Under the current PCRA
standard, however, a petitioner can obtain relief only if “the
newly discovered material evidence demonstrates that no
reasonable trier of fact could have found the petitioner guilty of the
offense or subject to the sentence received.” Utah Code Ann.
§ 78B-9-104(1)(e)(iv) (LexisNexis 2012) (emphasis added).
Because we have determined that Campbell’s affidavits, when
considered with other existing evidence, including Mulder’s and
Schlegel’s trial testimony, do not demonstrate that “no
reasonable trier of fact could have reached the jury’s
conclusion,” see Taylor v. State, 2012 UT 5, ¶ 26, 270 P.3d 471, we
are not persuaded by Mulder’s Julian argument.
20140642-CA 9 2016 UT App 207Mulder v. State
there was an unconstitutional exclusion of non-LDS individuals
from the jury, (4) failing to move to strike four jurors for cause,
and (5) failing to subpoena potential alibi witnesses. Mulder also
asserts that appellate counsel was ineffective for not arguing that
the trial court should have appointed substitute trial counsel.
¶20 “The Due Process Clause of the Fourteenth Amendment
[to the United States Constitution] guarantees the right to
effective assistance of appellate counsel.” Bruner v. Carver, 920
P.2d 1153, 1157 (Utah 1996) (citing Evitts v. Lucey, 469 U.S. 387,
396 (1985)). “The standard for evaluating whether appellate
counsel is ineffective is the same Strickland standard used to
determine whether trial counsel is ineffective.” Kell v. State, 2008
UT 62, ¶ 42, 194 P.3d 913; see also Smith v. Robbins, 528 U.S. 259,
285 (2000) (observing that “the proper standard for evaluating
[petitioner’s] claim that appellate counsel was ineffective . . . is
that enunciated in Strickland”). To succeed on a claim of
ineffective assistance of counsel, a petitioner must prove that
counsel’s “representation fell below an objective standard of
reasonableness” and that “the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687–88
(1984). Moreover, “[f]or a petitioner to prove that [appellate]
counsel was ineffective for omitting a claim, he must show that
the issue [was] obvious from the trial record and . . . probably
would have resulted in reversal on appeal.” Lafferty v. State, 2007
UT 73, ¶ 39, 175 P.3d 530 (omission and third alteration in
original) (citation and internal quotation marks omitted). “To
determine whether appellate counsel missed an obvious claim
on appeal, we examine the merits of the omitted issues.” Taylor
v. State, 2007 UT 12, ¶ 17, 156 P.3d 739 (brackets, citation, and
internal quotation marks omitted); see also id. (“Failure to raise an
issue that is without merit does not constitute constitutionally
ineffective assistance of counsel . . . .” (citation and internal
quotation marks omitted)). “Finally, when making a claim under
the PCRA, the petitioner bears the burden of establishing
20140642-CA 10 2016 UT App 207Mulder v. State
ineffective assistance of appellate counsel.” Ross v. State, 2012 UT
93, ¶ 24, 293 P.3d 345.
A. Cautionary Jury Instruction
¶21 Mulder contends that appellate counsel was ineffective
for failing to argue on direct appeal that trial counsel was
ineffective for not requesting a cautionary jury instruction
regarding the testimony of his accomplices—Schlegel and
Campbell. The district court denied this claim, concluding that
Mulder failed to show that the trial court was required to give a
cautionary jury instruction. The court also concluded that
Mulder failed to demonstrate prejudice because “the trial court
did instruct the jury as to the credibility of witnesses generally”
and “the questioning of [Mulder’s] accomplices by his trial
counsel fully identified for the jury the issues as to the
credibility, motives, and potential biases of those accomplices.”
¶22 Pursuant to section 77-17-7 of the Utah Code, “[a]
conviction may be had on the uncorroborated testimony of an
accomplice.” Utah Code Ann. § 77-17-7(1) (LexisNexis 2012). “In
the discretion of the court, an instruction to the jury may be given
to the effect that such uncorroborated testimony should be
viewed with caution, and such an instruction shall be given if the
trial judge finds the testimony of the accomplice to be self
contradictory, uncertain or improbable.” Id. § 77-17-7(2)
(emphases added).
¶23 In this case, there was testimony from two accomplices—
Campbell and Schlegel—and each accomplice’s testimony
corroborated the other’s. Both Campbell and Schlegel testified
that Mulder was an active and voluntary participant in the
planning and execution of the crime, that Mulder helped
Campbell obtain his disguise, that Mulder and Schlegel saw
Campbell wearing his disguise on the morning of the crime, that
Mulder and Campbell left the hotel together on the morning of
20140642-CA 11 2016 UT App 207Mulder v. State
the crime, that Mulder and Campbell returned to the hotel with
stolen coins, and that Mulder tried to pawn a stolen gold coin a
few days after the crime. In addition, Mulder’s own testimony
corroborated much of Schlegel’s and Campbell’s testimony, see
supra ¶ 17, and the State introduced corroborating physical
evidence, such as a receipt demonstrating that Mulder had sold a
gold coin shortly after the crime. Consequently, because the
testimony of Schlegel and Campbell was corroborated, section
77-17-7 did not apply, and the decision of whether to give a
cautionary instruction rested with the trial court. See State v.
Guzman, 2004 UT App 211, ¶ 36, 95 P.3d 302 (observing that “in
the case of corroborated accomplice testimony, giving [a
cautionary] instruction is discretionary”). Thus, even if trial
counsel had requested a cautionary instruction, the trial court
could have exercised its discretion and denied such a request.
We therefore conclude that Mulder has not demonstrated that
appellate counsel performed deficiently by failing to raise a
claim that trial counsel was ineffective for not requesting a
cautionary jury instruction.
¶24 Moreover, Mulder has not shown that he was prejudiced
by appellate counsel’s performance, because he has not shown
that raising this claim “probably would have resulted in reversal
on appeal.” Lafferty, 2007 UT 73, ¶ 39 (citation and internal
quotation marks omitted). Here, the jury was instructed
generally about its obligations in judging the credibility of the
witnesses and the weight of the evidence. See Guzman, 2004 UT
App 211, ¶ 37 (observing that Utah courts have “held that it is
not error to refuse a proposed instruction if the point is properly
covered in other instructions” (citation and internal quotation
marks omitted)). Specifically, the trial court instructed the jury to
consider any witness’s “possible bias or possible interest in the
result of the trial, and any possible motive the witness may have
to testify in a particular way.” The court also instructed the jury
to consider whether any witness’s testimony was “self-
contradicting testimony or was contradicted by other evidence.”
20140642-CA 12 2016 UT App 207Mulder v. State
¶25 Furthermore, trial counsel repeatedly highlighted the self-
interest of both Schlegel and Campbell at trial. Trial counsel
elicited testimony that Schlegel had received full immunity for
her testimony and that Campbell was testifying pursuant to a
plea bargain he had negotiated with the State. Trial counsel also
called one of Campbell’s fellow inmates, who testified that
Campbell had told him that he was testifying pursuant to a plea
deal, as well as an expert witness on prison culture, who testified
that it would have been unlikely for Campbell to have testified
without a plea deal. Based on the foregoing, a cautionary
instruction “was simply not necessary to prompt the jury to
question [the] veracity” of Schlegel and Campbell because the
trial court’s general instructions and the testimony that trial
counsel elicited adequately “alerted the jury to [their] possible
motive[s] for testifying with less than total candor.” See Guzman,
2004 UT App 211, ¶ 37. Because the record demonstrates that a
cautionary instruction likely would not have affected the jury’s
ultimate conclusion, we conclude that the district court did not
err in determining that appellate counsel was not ineffective for
omitting this claim on direct appeal.
B. Prosecutorial Misconduct
¶26 Mulder next contends that appellate counsel was
ineffective when she failed to argue on direct appeal that trial
counsel was ineffective for not arguing that the prosecutor
knowingly presented false testimony from Schlegel. The district
court concluded that Mulder’s “claims of prosecutorial
misconduct are not shown to be factually or legally correct” and
that appellate counsel was therefore not ineffective for omitting
this claim on direct appeal.
¶27 Schlegel testified at the preliminary hearing that she had
never seen Mulder with a gun. Then at trial, Schlegel testified
that during the planning of the robbery, she did not recall ever
seeing a gun of any sort, “just the stun gun.” Upon further
20140642-CA 13 2016 UT App 207Mulder v. State
questioning, Schlegel again testified that when the crime “was
being talked about . . . before it happened,” “[t]he only gun I
knew about was the stun gun at the time.” She also recalled that
after the crime, a gun “showed up” in her and Mulder’s home in
Las Vegas, that Mulder “had the gun” when she first saw it, and
that she helped Mulder sell a gun several weeks after the crime.
According to Mulder, the evidence in this case proves that the
weapon used in the crime was a “.32 caliber,” but Schlegel
described the gun as being over twelve inches long and as a
“‘Dirty Harry’ type gun.” 3 Mulder asserts that “[a]ny criminal
prosecutor should know with absolute certainty that a .32 caliber
revolver could not in any way be misconstrued as a ‘Dirty
Harry’ gun. This fact alone shows that Schlegel was perjuring
herself.” Thus, Mulder contends, appellate counsel should have
argued on direct appeal that trial counsel was ineffective for not
arguing that the prosecutor committed misconduct by
knowingly presenting false testimony from Schlegel.
¶28 “As the State’s representative, the prosecutor has a duty
to ‘see that justice is done.’” State v. Gordon, 886 P.2d 112, 115
(Utah Ct. App. 1994) (quoting Walker v. State, 624 P.2d 687, 691
(Utah 1981)). “[W]hen a prosecutor is aware that testimony is
false, he or she has a duty to correct the false impression; failure
to do so requires reversal ‘if there is any reasonable likelihood
that the false testimony could have affected the judgment of the
jury.’” Id. at 116 (quoting Walker, 624 P.2d at 690).
¶29 To prevail on a prosecutorial misconduct claim, appellate
counsel would have been required to demonstrate that the
prosecutor was aware that Schlegel’s testimony was false, see id.,
and that he presented it anyway. However, nothing in the record
3. To be exact, Schlegel testified that the gun was “long” and that
it “looked like the one that . . . Clint Eastwood would have. It
was a big gun.”
20140642-CA 14 2016 UT App 207Mulder v. State
proves that Schlegel’s trial testimony—that she saw Mulder with
a gun several weeks after the crime—was actually false. Indeed,
Schlegel’s testimony that she saw Mulder with a gun several
weeks after the crime does not conflict with her testimony that
she only saw Mulder with a stun gun before and around the
time of the crime. But more importantly, even if Schlegel did
testify falsely, nothing in the record suggests that the prosecutor
knew or believed Schlegel’s trial testimony to be false and
knowingly presented her testimony anyway. See id.; see also Tapia
v. Tansy, 926 F.2d 1554, 1563 (10th Cir. 1991) (“Contradictions
and changes in a witness’s testimony alone do not constitute
perjury and do not create an inference, let alone prove, that the
prosecution knowingly presented perjured testimony.”).
Consequently, this claim would not have been “obvious from the
trial record” and appellate counsel had no obligation to raise it
on direct appeal. See Lafferty v. State, 2007 UT 73, ¶ 39, 175 P.3d
530 (citation and internal quotation marks omitted).
¶30 In addition, Mulder has not shown that raising the claim
“probably would have resulted in reversal on appeal.” Id.(citation and internal quotation marks omitted). To prevail on
direct appeal, appellate counsel would have been required to
prove that “there is [a] reasonable likelihood that the false
testimony could have affected the judgment of the jury.” See
State v. Schreuder, 726 P.2d 1215, 1228 (Utah 1986) (citation and
internal quotation marks omitted). In this case, apart from
Schlegel’s testimony, Campbell testified that Mulder had a gun
and that he gave it to Campbell and encouraged him to use it
during the crime. Moreover, putting any testimony about the
gun aside, there was an array of testimony from both Schlegel
and Campbell demonstrating that Mulder was actively involved
in the planning and execution of the crime. See supra ¶¶ 16–17.
Accordingly, there is no reasonable likelihood that the jury
would have acquitted Mulder if it had not heard Schlegel’s
testimony that she saw Mulder with a gun several weeks after
the crime, and Mulder has not demonstrated that he was
20140642-CA 15 2016 UT App 207Mulder v. State
prejudiced by appellate counsel’s decision to omit this claim on
direct appeal. Therefore, the district court did not err in
determining that appellate counsel was not ineffective for
omitting this claim on direct appeal.
C. Religion
¶31 Mulder next contends that appellate counsel should have
raised a claim that trial counsel was ineffective for (1) not
questioning the prospective jurors about religion and (2) not
arguing that there was an unconstitutional exclusion of non-LDS
individuals from the jury. The district court concluded that
appellate counsel was not ineffective for omitting these claims
on direct appeal because (1) “trial strategy is discretionary, and
failure to make religion an issue is not per se ineffective
assistance of counsel”; (2) “the Utah Constitution prohibits
finding a juror incompetent ‘on account of religious belief or the
absence thereof’” and “[i]nquiry into religious belief is
permissible only where religion is ‘clearly relevant’ to the case”;
and (3) “there is no evidence of any unconstitutional exclusion of
[non-LDS individuals] from the jury.”
¶32 Mulder first claims that voir dire questions about
prospective jurors’ religious affiliation were warranted because,
as a “non-LDS member,” he was “part of a distinct minority
group in Washington County” whose “lifestyle conflict[ed] with
LDS doctrine.” Mulder also contends that LDS jurors would
have been biased against him because Victim was an LDS
bishop.
¶33 The Utah Constitution guarantees that no person
“shall . . . be incompetent as a witness or juror on account of
religious belief or the absence thereof.” Utah Const. art. I, § 4; see
also Utah Code Ann. § 78B-1-103(2) (LexisNexis 2012) (“A
qualified citizen may not be excluded from jury service on
account of . . . religion . . . .”). However, “juror competence and
20140642-CA 16 2016 UT App 207Mulder v. State
juror bias are separate considerations.” State v. Flores, 2015 UT
App 88, ¶ 14, 348 P.3d 361. Thus, “while it is ordinarily
inappropriate to inquire into venire members’ religious beliefs
during voir dire, inquiries into religion may be appropriate
when the case presents the possibility of actual bias stemming
from religious beliefs.” Id. (citation and internal quotation marks
omitted). In other words, “inquiry into potential jurors’ religious
affiliation . . . may occasionally be permissible during voir dire,”
but only where religion is “clearly relevant.” State v. Burke, 2011
UT App 168, ¶ 74, 256 P.3d 1102; see also, e.g., Depew v. Sullivan,
2003 UT App 152, ¶ 23, 71 P.3d 601 (concluding that limited
religious inquiry would have been appropriate during voir dire
where the defendant was absent from trial because he was
serving an LDS mission, especially “considering the heavy
emphasis the [LDS Church] places on missionary service”);
Hornsby v. Corporation of the Presiding Bishop of the Church of Jesus
Christ of Latter-day Saints, 758 P.2d 929, 933 (Utah Ct. App. 1988)
(“Whenever a religious organization is a party to the litigation,
voir dire regarding the jury panel’s religious affiliation is
proper.”).
¶34 We conclude that Mulder’s argument lacks merit for
several reasons. First, appellate counsel was not obligated to
raise a futile claim about trial counsel’s performance during voir
dire. “[J]ury selection is more art than science,” and there are “a
multitude of inherently subjective factors typically constituting
the sum and substance of an attorney’s judgments about
prospective jurors.” State v. Litherland, 2000 UT 76, ¶ 21, 12 P.3d
92. Trial counsel’s actions during voir dire are therefore
presumed to be matters of trial strategy, and the decision to
conduct voir dire on religious affiliation is a choice best left to
trial counsel. See id. ¶ 25 (“[T]he appellate court will presume
that counsel’s lack of objection to, or failure to remove, a
particular juror was the result of a plausibly justifiable conscious
choice or preference.”); see also id. ¶ 23 (“Defense counsel . . .
clearly have the right to identify and prefer particular jurors
20140642-CA 17 2016 UT App 207Mulder v. State
without regard to any particular objective criterion or
philosophy of jury selection.”). Consequently, although Mulder
now believes that trial counsel should have thought that
members of the LDS Church would be biased against him, his
counsel was not required to share that particular sentiment.
¶35 But more importantly, Victim’s position as an LDS bishop
did not make religion “clearly relevant” to this case. See Burke,
2011 UT App 168, ¶ 74. There was no apparent religious
motivation for the crime; rather, Mulder and his accomplices
appear to have been motivated by financial gain alone. And, as
the State correctly observes, Victim was not killed while he was
at church or while he was serving in his ecclesiastical capacity;
Victim was killed while he was working at his coin shop.
Moreover, the only reference in the record to Victim’s status as
an LDS bishop came during a pretrial hearing when trial counsel
mentioned to the court that Victim “was a Mormon bishop and
well known in the community.” In addition, during voir dire
each prospective juror was asked whether they knew Victim,
and no one said that they did. Consequently, religious issues
played no part in this case, and trial counsel could reasonably
choose to forgo asking questions about prospective jurors’
religious affiliation.
¶36 Nevertheless, Mulder insists that “it is a foregone
conclusion that some or all of the jurors knew of [Victim’s]
position in the Church” and that “it’s common sense that in a
small town, people in that town know each other or know of
each other.” However, as noted above, the prospective jurors
stated that they did not know Victim. Thus, Mulder’s claim is
entirely speculative, and it cannot support a claim of ineffective
assistance of counsel. See State v. Munguia, 2011 UT 5, ¶ 30, 253
P.3d 1082 (“[P]roof of ineffective assistance of counsel cannot be
a speculative matter but must be a demonstrable reality.”
(citation and internal quotation marks omitted)).
20140642-CA 18 2016 UT App 207Mulder v. State
¶37 Mulder also appears to be arguing that his “lifestyle”
made religion relevant because he is not a member of the LDS
Church. However, as the State correctly points out, “no Utah
decision has held that this, alone, makes religion ‘clearly
relevant’ to any case involving a non-Mormon.” Moreover, we
agree with the State that opposition to Mulder’s “lifestyle” “is
not unique to members of any particular church, or even to
religious people at all. Atheists and agnostics would likely have
similar objections, because crime threatens all law-abiding
citizens alike. Obeying the law is a civic virtue, not a religious
one . . . .” Because religion was not clearly relevant to this case,
appellate counsel had no basis for arguing that trial counsel was
ineffective for not asking prospective jurors about their religious
affiliation. It follows that Mulder was not prejudiced by
appellate counsel’s decision not to raise this claim on appeal.
¶38 Mulder’s second argument is that appellate counsel
should have argued there was an unconstitutional exclusion of
non-LDS individuals from the jury. The district court rejected
this argument, concluding that “there is no evidence of any
unconstitutional exclusion of non-Mormons from the jury.” We
agree with the district court.
¶39 In his brief, Mulder recognizes that prospective jurors
were not asked about their religious affiliation because “the jury
questionnaire used in [his] voir dire is [purposefully] devoid of
any questions that could elicit religious based bias.” Because
prospective jurors were not asked in their jury questionnaires
about their religious affiliation, it follows that neither trial
counsel nor the trial court could have known who was (or was
not) a member of the LDS Church. 4 Accordingly, it would not
4. We note that one juror who sat on the jury mentioned her
“church ward” during voir dire. But upon further questioning
by trial counsel, which only occurred because the juror
(continued…)
20140642-CA 19 2016 UT App 207Mulder v. State
have been “obvious from the trial record” that there was an
exclusion of non-LDS individuals from the jury, and thus,
Mulder cannot demonstrate that appellate counsel was
ineffective for omitting this claim on direct appeal. See Lafferty v.
State, 2007 UT 73, ¶ 39, 175 P.3d 530 (citation and internal
quotation marks omitted). We therefore conclude that the
district court did not err in determining that appellate counsel
was not ineffective for omitting these issues on direct appeal.
D. Individual Jurors
¶40 Mulder next contends that appellate counsel was
ineffective for not challenging trial counsel’s ineffectiveness in
failing to move to strike four jurors for cause. In his PCRA
petition, Mulder argued that appellate counsel should have
challenged trial counsel’s decision to pass eleven jurors for
cause. The district court rejected each of these arguments,
concluding that Mulder’s accusations “do not rise above the
level of ‘conspiracy theories,’ speculation and reckless
besmirching of individuals and an entire community,” and that
appellate counsel was not ineffective for omitting these issues on
direct appeal. The court further noted that “[t]he record shows
that trial counsel actively questioned prospective jurors during
voir dire” and that Mulder “fails to show that any juror was
actually and impermissibly biased.” Mulder now challenges the
district court’s ruling with respect to four of the challenged
jurors—L.D., K.G., S.H., and S.D.
¶41 In an ineffective assistance of counsel context, “[t]o show
that appellate counsel missed an obvious claim by not
(…continued)
mentioned her religion, the juror confirmed that she “wouldn’t
let [her] church affiliation background in any way interfere with
[her] decision making process.”
20140642-CA 20 2016 UT App 207Mulder v. State
challenging his trial counsel’s performance during jury selection,
[a defendant] must prove that trial counsel’s performance fell
below an objective standard of reasonable judgment and that
counsel’s deficient performance was prejudicial.” Taylor v. State,
2007 UT 12, ¶ 73, 156 P.3d 739. Proving that his counsel’s
performance fell below an objective standard of reasonableness
requires Mulder to “rebut the strong presumption that under the
circumstances, the challenged action might be considered sound
trial strategy.” Id. (citation and internal quotation marks
omitted). “In the context of jury selection, this is a difficult task
because a defendant must not only overcome the presumption
that trial counsel made a conscious choice to keep the juror but
also overcome the presumption that trial counsel’s decision to
keep a juror constituted effective assistance of counsel.” Id.(citation and internal quotation marks omitted). Furthermore, to
establish prejudice, Mulder “‘must show that his counsel’s
actions . . . allowed the seating of an actually biased juror.’” State
v. Arriaga, 2012 UT App 295, ¶ 13, 288 P.3d 588 (omission in
original) (quoting State v. King, 2008 UT 54, ¶ 18, 190 P.3d 1283);
see also id. (observing that a defendant “has the burden to show
that the deficient performance ‘affected the outcome of the case’”
(quoting State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92)).
¶42 The Utah Supreme Court has recognized that evaluating
trial counsel’s jury selection decisions is “an inherently
speculative exercise” due, in part, to the fact that “a trial
attorney’s decisions . . . may be based on little more than
personal preference.” Taylor, 2007 UT 12, ¶ 74 (omission in
original) (citations and internal quotation marks omitted).
“While trial counsel’s decisions are presumed to be reasonable,
the presumption is not irrebuttable.” Id. ¶ 75. A defendant may
rebut the presumption that trial counsel’s decision not to remove
a particular juror was the result of a plausibly justifiable
conscious choice or preference by showing
20140642-CA 21 2016 UT App 207Mulder v. State
(1) that defense counsel was so inattentive or
indifferent during the jury selection process that
the failure to remove a prospective juror was not
the product of a conscious choice or preference;
(2) that a prospective juror expressed bias so strong
or unequivocal that no plausible countervailing
subjective preference could justify failure to
remove that juror; or (3) that there is some other
specific evidence clearly demonstrating that
defense counsel’s choice was not plausibly
justifiable.
Id. (citation and internal quotation marks omitted). Mulder
claims that trial counsel was ineffective for failing to remove the
aforementioned jurors because they expressed bias so strong or
unequivocal that no plausible countervailing subjective
preference could justify failure to remove them.
1. Mulder has not carried his burden with respect to L.D.
¶43 Mulder argues that L.D. should have been removed
because (1) she had previously worked as a prison nurse;
(2) “she had once been the victim of a similar crime”; (3) she
made a statement “regarding her husband who was once a N.Y.
police officer”; and (4) a statement in her jury questionnaire
suggested that she found police officers to be “[m]ore credible.”
We address these arguments in turn.
¶44 First, Mulder argues that L.D. should have been removed
for cause because she stated in her jury questionnaire that she
had previously worked as a nurse at a maximum security prison.
Mulder relies on a Colorado case, People v. Scott, 583 P.2d 939(Colo. App. 1978), for the proposition that personnel of a
penitentiary constitute law enforcement such that they “shall be
excused from jury service.” Id. at 941–42. But see id. at 942(observing that former employees of public law enforcement
20140642-CA 22 2016 UT App 207Mulder v. State
agencies do not appear to be disqualified from jury service).
According to Mulder, L.D.’s “function as a nurse rather than a
full-blown corrections officer does not dissuade the rule of
common law that she be excused for cause from jury service.”
¶45 However, Utah courts have “upheld denials of motions to
strike law enforcement personnel for cause when questioning on
voir dire dispels any suggestion of bias raised by the prospective
juror’s law enforcement background.” State v. Ramos, 882 P.2d
149, 152 (Utah Ct. App. 1994); see also Coggeshell v. State, 2011 UT
App 375, ¶ 6, 265 P.3d 818 (per curiam) (observing that “law
enforcement personnel are not automatically disqualified from
jury duty in a criminal case”). For example, in State v. Ramos, this
court concluded that the trial court’s questioning dispelled any
inference that a juror who had worked as a police dispatcher for
twenty years was biased. 882 P.2d at 153–54. In State v. Gray, 851
P.2d 1217 (Utah Ct. App. 1993), this court similarly concluded
that the trial court’s careful voir dire of a juror who had worked
as a highway patrolman for four years rebutted any inference of
bias. Id. at 1222–23. And in State v. Cobb, 774 P.2d 1123 (Utah
1989), our supreme court concluded that the trial court’s
questioning of a juror who had worked as a police officer for two
years “cleared up any doubts regarding [the juror’s] ability to be
an impartial juror.” Id. at 1127–28.
¶46 In this case, both the prosecutor and trial counsel initially
agreed that L.D. should be stricken for cause due to her previous
employment as a prison nurse; however, after extensive
questioning of L.D. in chambers, both the prosecutor and trial
counsel passed L.D. for cause. During voir dire, L.D. explained
that she had worked as a prison nurse for six years at a
maximum security prison in New York. She then stated
numerous times that this experience would not affect her
opinion when evaluating this case. Specifically, L.D. explained:
“I think that every person has a right to [be] heard [regarding]
all sides of whatever crime has been committed, and then a
20140642-CA 23 2016 UT App 207Mulder v. State
judgment made from that.” She further explained that during
her time as a prison nurse she had “tried not to become personal
and . . . make personal opinions . . . on some of these inmates
that came into our unit.” After L.D. left the trial court’s
chambers, trial counsel stated that after observing L.D. and
hearing her answers to the questions regarding her background,
he believed that she had answered the questions with candor
and that she had “an open mind.” The trial court agreed, stating
that L.D. appeared “to be quite a professional” and seemed
“very even handed.” Consequently, even if L.D.’s former
position as a prison nurse could be seen as facially raising an
issue of impartiality, the subsequent questioning of L.D. “cleared
up any doubts” regarding her ability to serve as an impartial
juror. See Cobb, 774 P.2d at 1127–28.
¶47 Second, Mulder argues that L.D. should have been
removed for cause because “she had once been the victim of a
similar crime.” “A potential juror’s prior victimization does not
mandate the juror be removed for cause.” State v. Boyatt, 854
P.2d 550, 553 (Utah Ct. App. 1993); see also State v. Tennyson, 850
P.2d 461, 469 (Utah Ct. App. 1993) (“We are unaware of . . . any
rule that automatically disqualifies prospective jurors who have
been, or have friends or relatives who have been, victims of
crimes similar to those at issue in the case where they might sit
as jurors.”). Rather, in State v. Brooks, 868 P.2d 818 (Utah Ct. App.
1994), overruled on other grounds, 908 P.2d 856 (Utah 1995), this
court acknowledged that a question of potential bias arises when
a prospective juror indicates that he or she has been the victim of
a similar crime, id. at 823. Thus, in such circumstances, “the court
or counsel must investigate further to determine if the juror can
be impartial despite the past experience.” State v. Wach, 2001 UT
35, ¶ 29, 24 P.3d 948. “If, after probing the prospective juror’s
state of mind, the trial court is satisfied that the juror can view
and weigh the evidence impartially, the inquiry is at an end.”
Brooks, 868 P.2d at 823.
20140642-CA 24 2016 UT App 207Mulder v. State
¶48 In this case, L.D. was questioned in chambers about her
prior victimization, and she explained that she had been
burglarized eighteen to twenty years earlier in Nevada. She
stated that she felt “a little violated when that happened” and
that it “took a little while to get over that.” Trial counsel then
asked L.D. if the fact that Mulder had been previously convicted
of burglary would impact her ability “to weigh fairly and give
[Mulder] every presumption that the law does in fact give him.”
L.D. explained that she had a brother who served time in prison
for burglary, that she loved her brother, and that she would have
to “know [the] circumstances” before judging someone who
allegedly committed such a crime. Ultimately, L.D. stated that
she thought she “could be fair.” Accordingly, L.D.’s responses
related to her prior victimization indicated that she could be
impartial despite having been the victim of a similar crime. See
Wach, 2001 UT 35, ¶ 29.
¶49 Third, Mulder argues that L.D. should have been
removed for cause because she made a statement “regarding her
husband who was once a N.Y. police officer.” During voir dire,
trial counsel asked L.D. whether her deceased husband had been
involved in law enforcement. L.D. explained that her husband
had been a traffic patrol officer in New York and that he had left
the job twenty-five to thirty years earlier. When trial counsel
remarked that L.D.’s husband had been a “smoky bear on the
turnpike,” L.D. replied, “Yeah. One of New York’s finest.” Based
on this brief exchange, Mulder asserts that trial counsel should
have moved to strike L.D. for cause, because “[r]eferring to a
police officer as one of the finest citizens of a state is indicia of
strong bias.” However, the trial court confirmed with L.D. that
“there was nothing about being married to [her husband]” that
would impact her ability to be impartial. Consequently, L.D.’s
isolated comment regarding her husband did not “indicate[] the
sort of strong or unequivocal bias that would mandate [her]
removal from the jury.” See State v. Litherland, 2000 UT 76, ¶ 28,
12 P.3d 92.
20140642-CA 25 2016 UT App 207Mulder v. State
¶50 Fourth, Mulder argues that L.D. should have been
removed for cause because she made a statement in her jury
questionnaire that suggested she found police officers to be
“[m]ore credible.” In the written jury questionnaire, jurors were
asked: “Do you agree/disagree with the following statement: ‘A
police officer’s testimony in court should receive more or less
weight, be given more or less credibility, than the testimony of a
non-police officer.’” In response, L.D. wrote, “More credible—
He holds a position of authority, should be honest.” Mulder
contends that this response indicates that L.D. was actually
biased, and because she was “never asked about this expressed
bias,” the trial court “could not possibly have been satisfied that
[L.D.’s] bias had in any way been attenuated.”
¶51 In her written questionnaire, L.D. stated, “I would be a
good juror because I would not make a decision until I have
heard all the facts.” And she stated that she understood that
“[o]ne of the basic principles of American law is that a person
cannot be convicted unless the prosecution proves the charges
beyond a reasonable doubt,” and that Mulder “is not considered
guilty as he sits here and [she] need not hear anything to find
him not guilty.” During voir dire, L.D.’s individual questioning
and counsel’s on-the-record discussion of L.D. were extensive,
spanning twenty-three pages of transcript. During her
individual questioning, L.D. stated that due to her experience as
a prison nurse, she strongly believed that “every person has a
right to [be] heard [regarding] all sides of whatever crime has
been committed, and then a judgment made from that.” She also
stated that she thought she “could be fair.” Upon further
questioning by the trial court, L.D. stated that she agreed with
the presumption of innocence and that Mulder’s convictions in
other states and his involvement with illegal drugs would not
affect her ability to be impartial. Thus, although L.D. was not
specifically asked about the “more credible” statement from her
jury questionnaire, other responses from her questionnaire along
with counsel’s and the trial court’s subsequent questioning
20140642-CA 26 2016 UT App 207Mulder v. State
“cleared up any doubts” regarding her ability to be an impartial
juror. See State v. Cobb, 774 P.2d 1123, 1127–28 (Utah 1989).
¶52 Moreover, although a police officer did testify at trial, the
record indicates that his testimony was largely related to how
the investigation of the case unfolded. Thus, it appears as though
the officer’s credibility “was not really at issue,” and Mulder has
not claimed that the officer misrepresented anything during his
testimony. See State v. Arriaga, 2012 UT App 295, ¶ 16, 288 P.3d
588 (observing that it was “difficult to see any possibility of
prejudice” to the defendant where the police officer’s credibility
“was not really at issue” and there was no claim that the officer
misrepresented or tampered with the contents of a recorded
interview). Consequently, Mulder has not demonstrated that
L.D.’s statement regarding police officers’ credibility prejudiced
him.
¶53 In sum, Mulder has not demonstrated that there was no
plausible basis for trial counsel’s decision not to challenge L.D.
during the jury selection process. The record demonstrates that
L.D. was thoroughly vetted during voir dire, during which she
reaffirmed her ability to judge fairly, and that she did not
express a “bias so strong or unequivocal” that she should have
been stricken. See Taylor v. State, 2007 UT 12, ¶ 75, 156 P.3d 739(citation and internal quotation marks omitted). 5
5. In passing, Mulder also contends that trial counsel was “so
inattentive or indifferent during the jury selection process that
the failure to remove [L.D.] was not the product of a conscious
choice or preference.” See Taylor v. State, 2007 UT 12, ¶ 75, 156
P.3d 739. However, the record demonstrates that trial counsel
was actively engaged throughout the voir dire process. Trial
counsel submitted a twelve-page jury questionnaire to all
prospective jurors before trial and actively participated in
questioning the prospective jurors throughout the two days of
(continued…)
20140642-CA 27 2016 UT App 207Mulder v. State
2. Mulder has not carried his burden with respect to K.G.
¶54 Mulder argues that K.G. should have been removed
because (1) he was an LDS bishop and (2) he was once a military
police officer and had relatives in law enforcement. Mulder also
contends that he is entitled to relief because the transcript of
K.G.’s individual voir dire is “inexplicably incomplete.”
¶55 First, Mulder claims that K.G. should have been removed
for cause because of “potential prejudicial bias resulting from
his . . . position as [an] LDS bishop.” However, in the ineffective
assistance of counsel context, to establish prejudice, Mulder
“must show that his counsel’s actions . . . allowed the seating of
an actually biased juror.” Arriaga, 2012 UT App 295, ¶ 13
(omission in original) (emphasis added) (citation and internal
quotation marks omitted). Here, Mulder has not cited anything
in the record demonstrating that K.G. was actually biased
because he was an LDS bishop; rather, his claim is based only on
pure speculation. See State v. Munguia, 2011 UT 5, ¶ 30, 253 P.3d
1082 (observing that “proof of ineffective assistance of counsel
cannot be a speculative matter but must be a demonstrable
reality” (citation and internal quotation marks omitted)).
Moreover, as previously discussed, religion was not clearly
relevant to this case, and therefore inquiry into K.G.’s religious
beliefs and his ecclesiastical position during voir dire would
have been inappropriate. See supra ¶ 35; Hornsby v. Corporation of
the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints,
758 P.2d 929, 933 n.2 (Utah Ct. App. 1988) (stating that “[t]he
religious beliefs of the prospective jurors are not directly related
(…continued)
voir dire. The record also indicates that trial counsel paid specific
attention to L.D. based on her jury questionnaire. This
participation belies Mulder’s claim that trial counsel was
inattentive or indifferent during L.D.’s voir dire.
20140642-CA 28 2016 UT App 207Mulder v. State
to the subject matter of this suit, and hence could not properly be
examined during voir dire”).
¶56 Second, Mulder claims that K.G. was biased because of
his alleged prior service as a military police officer and because
K.G. allegedly had family members serving as police officers.
However, in his jury questionnaire, K.G. stated that he had not
served in the military or “in the military police or shore patrol”
and that he had never been a law enforcement officer.
Additionally, the jury questionnaire asked: “Have you, or
anyone close to you, ever been employed or sought employment
or volunteered to help, any of the following local, state or
federal law enforcement or other investigative agency?” The
questionnaire then listed twenty-seven different law
enforcement departments and governmental agencies. K.G. did
not list himself or anyone else under this question. And in any
event, as previously discussed, even if K.G. had formerly served
in law enforcement, a potential juror’s prior law enforcement
service does not automatically disqualify him from jury service.
See State v. Ramos, 882 P.2d 149, 153–54 (Utah Ct. App. 1994).
Similarly, the fact that K.G. allegedly had family members in law
enforcement does not automatically establish actual bias such
that he should have been disqualified from jury service, and
Mulder has not demonstrated that K.G.’s relation to law
enforcement officers, if true, had any bearing on K.G.’s ability to
be fair and impartial. See State v. Wach, 2001 UT 35, ¶ 41, 24 P.3d
948 (rejecting a bias claim that was based on one of the jurors
being related to a police officer).
¶57 In addition, regardless of K.G.’s ecclesiastical position and
alleged law enforcement ties, in his jury questionnaire, K.G.
indicated that he could be an impartial juror. K.G. stated that it
was more important to him “that the innocent be acquitted” than
“the guilty . . . be convicted.” He also stated that he understood
the presumption of innocence and that Mulder “is considered
not guilty as he sits here and [K.G.] need not hear anything to
20140642-CA 29 2016 UT App 207Mulder v. State
find him not guilty.” K.G. further expressed a willingness to
“completely set aside” any prior opinions on the case and
“render [his] decision only based on the evidence presented at
trial.” Consequently, it is difficult to see any evidence of
partiality on K.G.’s part. We therefore conclude that Mulder has
not demonstrated that K.G. “expressed bias so strong or
unequivocal that no plausible countervailing subjective
preference could justify failure to remove [him].” See State v.
Litherland, 2000 UT 76, ¶ 25, 12 P.3d 92.
¶58 Finally, Mulder contends that he is entitled to relief under
State v. Taylor, 664 P.2d 439 (Utah 1983), because the transcript of
K.G.’s individual voir dire is “inexplicably incomplete.” Mulder
correctly observes that the transcript of K.G.’s voir dire “stops in
mid-sentence on pg. 160, line 16 and picks up again at line 18.” 6
The State concedes that the transcript of K.G.’s voir dire is
incomplete; however, the State contends that State v. Taylor does
not require reversal in this case.
¶59 In State v. Taylor, the defendant argued that the trial
court’s questioning of potential jurors “was inadequate both for
a determination of actual bias as a basis for dismissals for cause
and for the intelligent exercise of peremptory challenges.” 664
P.2d at 445. The defendant further asserted that because there
were many responses of potential jurors that were recorded
merely as “inaudible,” it was impossible for the appellate court
to adequately review his claims of error. Id. at 445–46. More
specifically, the defendant contended that the trial court erred in
rejecting the defendant’s challenge to a particular juror for cause.
Id. That juror then served on the panel and was appointed as
jury foreperson. Id. However, the juror’s answers to two sets of
pertinent questions could not be discerned from the transcript.
6. It is unclear as to how much of K.G.’s voir dire is missing due
to the gap in the transcript.
20140642-CA 30 2016 UT App 207Mulder v. State
Id. at 445–47. The Utah Supreme Court held that because the
transcript did not adequately record the prospective juror’s
answers, it could not review the appellant’s specific claims about
that juror. Id. at 447. The court observed that when faced with
claims of juror bias, an appellate court cannot assume answers
that “are totally absent from the record and cannot be
reconstructed by agreement of the parties.” Id. Thus, because the
omissions in the transcript rendered the record inadequate for
appeal, the court ordered a new trial. Id.
¶60 This case is distinguishable. State v. Taylor involved a
preserved claim raised on direct appeal, whereas Mulder’s claim
arises in the context of a postconviction challenge to his
appellate counsel’s performance. Thus, unlike the defendant in
State v. Taylor, Mulder cannot prevail simply by showing that the
trial court erred; rather, he must “rebut the strong presumption
that under the circumstances, the challenged action might be
considered sound trial strategy.” Taylor v. State, 2007 UT 12, ¶ 73,
156 P.3d 739 (citation and internal quotation marks omitted).
And in the context of jury selection, “this is a difficult task
because a defendant must not only overcome the presumption
that trial counsel made a conscious choice to keep the juror but
also overcome the presumption that trial counsel’s decision to
keep a juror constituted effective assistance of counsel.” Id.(citation and internal quotation marks omitted). Additionally,
Mulder must demonstrate that he was prejudiced by trial
counsel’s performance. Id.; cf. State v. Menzies, 845 P.2d 220, 228
(Utah 1992) (reaffirming State v. Taylor and observing that “the
mere existence of [transcription] errors does not mandate a new
trial”; instead, there must be “a showing of prejudice to overturn
a conviction on the basis of transcription errors”); State v. Russell,
917 P.2d 557, 559 (Utah Ct. App. 1996) (observing that State v.
Taylor “did not hold that a defendant is entitled to a new trial
whenever there is a gap in the record”). Here, although the
record demonstrates that trial counsel passed K.G. for cause,
Mulder nevertheless attempts to rebut the presumption that trial
20140642-CA 31 2016 UT App 207Mulder v. State
counsel made a conscious choice to keep K.G. by contending that
K.G. “expressed bias so strong or unequivocal that no plausible
countervailing subjective preference could justify failure to
remove” him. See Taylor, 2007 UT 12, ¶ 75 (citation and internal
quotation marks omitted). Mulder asserts that the missing
portion of K.G.’s voir dire is “especially relevant” because it
would “reflect obvious bias” of K.G.
¶61 We will not presume bias on the part of K.G. based solely
on a gap in the transcript of his voir dire. Cf. West Valley City v.
Roberts, 1999 UT App 358, ¶ 11, 993 P.2d 252 (“[W]e do not
presume error simply because a record is incomplete or
unavailable.”). Rule 11 of the Utah Rules of Appellate Procedure
provides a mechanism for a party to reconstruct the record, if
possible, if anything material “is omitted from the record by
error or accident,” as Mulder asserts was the case here. Utah R.
App. P. 11. Here, Mulder has not established that there is a gap
in the actual audio recording of K.G.’s voir dire by, for example,
having the recording retranscribed or checked by the transcriber.
And even if he had established a gap, Mulder has not attempted
to reconstruct the record pursuant to rule 11. Accordingly,
Mulder has not demonstrated or even asserted that the record of
K.G.’s voir dire cannot be satisfactorily reconstructed. 7 Cf. State
v. Davis, 2013 UT App 228, ¶ 90, 311 P.3d 538 (observing that
“lack of an adequate record constitutes a basis for remand and a
new hearing only where . . . the record cannot be satisfactorily
reconstructed” (citation and internal quotation marks omitted)).
Consequently, we are not persuaded by Mulder’s conclusory
assertion that he was prejudiced based on the missing portion of
7. Mulder does not assert that appellate counsel was ineffective
for failing to assure the existence of a complete record, and even
if he had, Mulder would still be required to show how counsel’s
performance was deficient in this regard and that he was
prejudiced. See Carter v. Galetka, 2001 UT 96, ¶ 56, 44 P.3d 626.
20140642-CA 32 2016 UT App 207Mulder v. State
the transcript. See, e.g., Menzies, 845 P.2d at 228 (explaining that a
defendant’s burden to show prejudice is not satisfied by the
mere existence of transcription errors).
¶62 Moreover, Mulder has failed to otherwise demonstrate
how he was prejudiced by the incomplete transcript of K.G.’s
voir dire. To the extent Mulder argues that the transcript would
“reflect obvious bias of [K.G.]” based on K.G.’s status as an LDS
bishop and his alleged law enforcement ties, these claims are
without merit. Again, religion was not clearly relevant to this
case, and consequently, inquiry into K.G.’s religious beliefs and
his ecclesiastical position was not an appropriate topic for voir
dire. See supra ¶ 35. Regarding K.G.’s alleged law enforcement
ties, we conclude that the record is adequate to allow us to
review this claim. As previously discussed, K.G. stated in his
jury questionnaire that he had not served in the military or “in
the military police or shore patrol” and that he had never been a
law enforcement officer. And he did not list anyone, including
himself, under the question “Have you, or anyone close to you,
ever been employed or sought employment or volunteered to
help, any of the following local, state or federal law enforcement
or other investigative agency?”
¶63 Mulder also appears to be arguing that State v. Taylor
requires reversal because “neither the judge [nor] counsel ever
asked [K.G.] if he knew [Victim] or his family” and “[a]ll the
other potential jurors were asked, but not [K.G.]” Our review of
the record confirms that every other juror who sat on the panel
was asked whether he or she knew Victim or his family, a fact
which Mulder acknowledges. Consequently, it is almost certain
that K.G. was asked as well and that any answer given was
unobjectionable. See Menzies, 845 P.2d at 232. In addition, K.G.
stated in his jury questionnaire that he had not “heard anything
about this case before.” Based on the foregoing, we conclude that
Mulder has not demonstrated that he was prejudiced by the
20140642-CA 33 2016 UT App 207Mulder v. State
transcription error in K.G.’s voir dire. In the absence of a
showing of prejudice, State v. Taylor does not require reversal.
3. Mulder has not carried his burden with respect to S.H.
¶64 Mulder argues that S.H. should have been removed for
cause because she was friends with the wife of a judge.
However, although S.H. was friends with the wife of a judge,
that judge did not preside over Mulder’s trial. And Mulder has
not cited any authority for the proposition that a prospective
juror cannot sit if he or she is friends with the spouse of a judge
not presiding over the case at bar. In addition, S.H. was asked
whether she had “ever discussed the law in any way with [the
judge],” and she responded, “Never.” Mulder points to nothing
else in the record to demonstrate that S.H. was actually biased
against him. Consequently, Mulder cannot show that S.H.’s
friendship with a nonpresiding judge’s wife created a “bias so
strong or unequivocal that no plausible countervailing subjective
preference could justify failure to remove” her. See State v.
Litherland, 2000 UT 76, ¶ 25, 12 P.3d 92.
4. Mulder has not carried his burden with respect to S.D.
¶65 Mulder argues that S.D. should have been removed for
cause because “she tried to secure employment with the police
force and has a close friend with the L.A.P.D.” However, Mulder
provides no legal analysis as to why these facts about S.D., if
true, would render her actually biased. Moreover, as previously
discussed, Utah courts have often allowed law enforcement
officers to serve on juries, see, e.g., State v. Ramos, 882 P.2d 149,
153−54 (Utah Ct. App. 1994), and Mulder has pointed us to no
authority holding that persons who have applied for law
enforcement positions, or who have friends in law enforcement,
cannot serve as jurors. Additionally, trial counsel asked S.D. if
her association with her law enforcement friend would “give
[her] any bias one way or the other in this case,” and S.D.
20140642-CA 34 2016 UT App 207Mulder v. State
answered, “No.” Consequently, Mulder has not demonstrated
that S.D. had “bias so strong or unequivocal that no plausible
countervailing subjective preference could justify failure to
remove” her. See Litherland, 2000 UT 76, ¶ 25.
¶66 In sum, because Mulder has not demonstrated that any of
the four challenged jurors expressed a “bias or conflict of interest
that [was] so strong or unequivocal as to inevitably taint the trial
process,” he has not overcome the presumption that trial counsel
was acting reasonably and his claims fail. Id. ¶ 32. Accordingly,
we cannot conclude that appellate counsel missed an obvious
claim that would have led to a different result on appeal. See
Lafferty v. State, 2007 UT 73, ¶ 39, 175 P.3d 530. Likewise, we
conclude that the district court did not err when it determined
that appellate counsel was not ineffective for failing to raise
these claims on direct appeal.
E. Additional Alibi Witnesses
¶67 Mulder next contends that appellate counsel should have
raised a claim on direct appeal that trial counsel “should have
subpoenaed potential alibi witnesses to be examined during trial
testimony.” In his PCRA petition, Mulder relied on two letters—
one from his mother and one from his uncle—allegedly written
to his appellate counsel. The letters detail efforts by Mulder’s
mother and uncle to corroborate Mulder’s claim that he was in
Mesquite at the time of the robbery and murder. The district
court ruled that “[t]he affidavits of the two proposed alibi
witnesses are insufficient to establish a valid alibi, because they
do not show that [Mulder] could not have been at the crime
scene on the day and at the time of the murder. . . . Therefore, it
was not ineffective assistance for appellate counsel to fail to raise
this issue on appeal.”
¶68 A “purported alibi which leaves it possible for the
accused to be the guilty person is no alibi at all.” State v. Romero,
20140642-CA 35 2016 UT App 207Mulder v. State
554 P.2d 216, 219 (Utah 1976) (citation and internal quotation
marks omitted). In this case, Mulder claimed that he stayed in
Mesquite on the morning of the crime and that he did not
accompany Campbell to St. George. Mulder’s letters provide no
proof of this claim.
¶69 Mulder’s mother stated in her letter that, after the trial,
she had spoken to people at “two of the three places that my
brother and I went to, to confirm that [Mulder] was in fact with
these people” and that “the people at both places remembered
[Mulder] being there and what they talked about.” In his letter,
Mulder’s uncle stated that he had spoken with “potential
witnesses,” and that “[w]hat we found was hopeful but
inconclusive due to the lack of physical proof that too much
lapsed time brings.” Notably, Mulder’s uncle’s letter fails to
identify the potential alibi witnesses he spoke to, and neither
letter says anything about whether the potential alibi witnesses
specifically remembered seeing Mulder in their stores on the
morning of the crime.
¶70 Consequently, even if true, Mulder’s letters do not
establish an alibi because it was possible that Mulder visited the
stores on a different day or at a different time than when
Campbell robbed and shot Victim. Because it is still “possible for
the accused to be the guilty person,” Mulder’s letters created “no
alibi at all.” See Romero, 554 P.2d at 219 (citation and internal
quotation marks omitted). Therefore, Mulder has not
demonstrated that his appellate counsel omitted a claim that
“probably would have resulted in reversal on appeal,” see
Lafferty, 2007 UT 73, ¶ 39 (citation and internal quotation marks
omitted), and the district court did not err in determining that
appellate counsel was not ineffective for omitting this claim on
direct appeal.
20140642-CA 36 2016 UT App 207Mulder v. State
F. Substitute Counsel
¶71 Lastly, Mulder contends that appellate counsel was
ineffective for not arguing that the trial court should have
appointed substitute counsel because trial counsel allegedly
prevented Mulder from “present[ing] his theory of the case.”
The district court concluded that the “reasons given by [Mulder]
for the appointment of substitute counsel did not and do not
constitute good cause for such an appointment” and that trial
counsel presented Mulder’s theory of the case at trial through
Mulder’s own testimony. The court further observed that trial
counsel “presented the only alibi evidence that might have been
obtained from the defense investigator” and that trial counsel
presented the testimony of one of Campbell’s fellow inmates in
an effort to impeach Campbell’s testimony. Noting that
“[n]othing suggested by [Mulder] in this respect shows any
likelihood of a different verdict,” the district court concluded
that appellate counsel was not ineffective for failing to raise this
issue on direct appeal.
¶72 “While an indigent defendant has a right to have counsel
appointed to represent him, he does not have a constitutional
right to a lawyer other than the one appointed, absent good
cause.” State v. Pursifell, 746 P.2d 270, 272 (Utah Ct. App. 1987)
(citation omitted). Good cause may be demonstrated by “a
conflict of interest, a complete breakdown in communication or
an irreconcilable conflict which leads to an apparently unjust
verdict.” State v. Lovell, 1999 UT 40, ¶ 31, 984 P.2d 382 (citation
and internal quotation marks omitted); see also State v. Pando,
2005 UT App 384, ¶ 27, 122 P.3d 672 (“The burden on a
defendant to show good cause is a heavy one.”). When a
defendant expresses dissatisfaction with counsel, a trial court
“must make some reasonable, non-suggestive efforts to
determine the nature of the defendant’s complaints.” Pursifell,
746 P.2d at 273.
20140642-CA 37 2016 UT App 207Mulder v. State
¶73 In this case, Mulder complained about trial counsel to the
trial court on two occasions. Nevertheless, the trial court did not
appoint replacement counsel, and there is no indication that the
court conducted a Pursifell inquiry. The State concedes that the
trial court’s “[f]ailure to conduct such an investigation is per se
error.” We agree; the trial court erred in not conducting a
meaningful inquiry into Mulder’s allegations. However, the
State argues that the trial court’s error was harmless and that
Mulder is not entitled to a reversal because the record is
“‘sufficient to support the trial court’s determination that good
cause did not exist for substitut[ing] counsel.’” (Quoting State v.
Valencia, 2001 UT App 159, ¶ 14, 27 P.3d 573.) We agree with the
State.
¶74 First, Mulder asserts that trial counsel did not allow him
to “present his theory of the case.” According to Mulder, “trial
counsel instructed [him] that he could only speak in response to
the questions that counsel asked, therefore, not allowing [him] to
effectively present his version of events which may have made
the difference between guilty or not guilty.” Mulder’s theory of
the case was detailed in a February 24, 2006 letter written to trial
counsel. In his letter, Mulder alleged that the robbery was
Schlegel’s idea, that Schlegel had blackmailed Mulder into
participating in the crime, that Mulder agreed to rob Victim’s
shop but that he actually planned to stay in Mesquite and not
partake in the robbery, and that Campbell drove to St. George
and robbed the shop on his own. When Mulder testified at trial,
trial counsel elicited this exact account during direct
examination. For example, Mulder testified that Schlegel had
mentioned that Victim was “sitting on a gold mine” and that it
was her idea to rob Victim’s coin shop; that Schlegel blackmailed
him into participating in the robbery with comments like, “Well,
I hope nobody finds out about those burglaries you were doing”;
that he told Schlegel that he and Campbell would do the robbery
because he “was afraid that she was going to turn [him] in on the
burglaries”; that he helped Campbell obtain a disguise so that
20140642-CA 38 2016 UT App 207Mulder v. State
Schlegel “would think that we were actually going to go do the
robbery”; that when Mulder and Campbell left the hotel on the
morning of the crime, Schlegel “thought we were going to do the
robbery, but I knew we weren’t going to go do that”; and that
Campbell left Mulder in Mesquite, where Mulder spent the
morning trying to sell jewelry. Moreover, trial counsel engaged
an investigator to verify Mulder’s claim that he stayed in
Mesquite on the day of the crime. The investigator testified that
he was able to verify Mulder’s descriptions of the stores he
allegedly visited and the people he allegedly spoke to. Thus, the
record indicates that Mulder was able to “present his theory of
the case.”
¶75 Second, Mulder asserts that in an August 2006 letter to the
trial court, he explained that trial counsel had “let a witness get
away . . . who could testify that [Campbell] perjured himself and
that the prosecutor encouraged him to do so.” According to
Mulder, “trial counsel tried . . . not to bring this witness to the
stand.” However, the record indicates that trial counsel
ultimately called that witness, J.D., to testify at trial and secured
his favorable testimony. J.D. testified that Campbell told him
that “someone in law enforcement or corrections” “had come up
to [Campbell] and . . . told him that if he would testify in this
case that . . . they [were] going to give him . . . 10 years off his
time served or give him 10 years.” J.D. further testified that “the
story [he] got” was that Campbell was “going to get something
for his testimony in this case.” Moreover, as previously
discussed, trial counsel elicited testimony from Campbell that he
was testifying pursuant to a plea bargain. See supra ¶ 25.
Consequently, although the trial court erred by not making an
inquiry into the reasons for Mulder’s dissatisfaction with trial
counsel, we conclude that Mulder has not demonstrated that he
was prejudiced by appellate counsel’s failure to raise this claim
on direct appeal, because he has not shown that raising the claim
“probably would have resulted in reversal on appeal.” See
20140642-CA 39 2016 UT App 207Mulder v. State
Lafferty v. State, 2007 UT 73, ¶ 39, 175 P.3d 530 (citation and
internal quotation marks omitted).
CONCLUSION
¶76 We conclude that the district court did not err in granting
the State’s motion for summary judgment. Mulder failed to
demonstrate that no reasonable trier of fact could have found
him guilty in light of the evidence underlying his newly
discovered evidence claim, or that his appellate counsel was
constitutionally ineffective. Accordingly, we affirm.
20140642-CA 40 2016 UT App 207