State v. Bonds , 2019 UT App 156 ( 2019 )

2019 UT App 156THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
CHRISTOPHER JAMES BONDS,
Appellant.
Opinion
No. 20180238-CA
Filed September 26, 2019
Third District Court, Salt Lake Department
The Honorable Keith A. Kelly
No. 161912346
Nathalie S. Skibine, Attorney for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN
concurred.
HARRIS, Judge:
¶1 After a scuffle, Christopher James Bonds fatally shot his
friend (Victim). In an interview with police a few hours after the
shooting, Bonds admitted that he had shot Victim, but claimed
that, right before the shooting, Victim had threatened to harm
Bonds’s children, and that he had shot Victim in order to protect
them. A jury was not persuaded by Bonds’s theory of self-
defense, and convicted Bonds of murder, rather than acquitting
him or convicting him of manslaughter. Bonds now appeals,
asserting that his confession was coerced and should have been
suppressed, and that his trial attorney provided ineffective
assistance by failing to object to improper jury instructions
regarding self-defense, as well as part of the State’s evidence
State v. Bonds
regarding self-defense. We conclude that the trial court did not
err by denying Bonds’s motion to suppress his confession. But
we agree with Bonds that his attorney provided ineffective
assistance, and therefore reverse all but one of his convictions
and remand for a new trial.
BACKGROUND 1
¶2 Bonds and Victim were good friends and socialized often;
indeed, about a week before the events giving rise to this case,
Bonds permitted Victim to live with him on a temporary basis
after Victim’s girlfriend (Girlfriend) kicked him out of her
apartment. One evening, Bonds and his wife (Wife) left their two
children with Wife’s mother—who lived in the same apartment
complex as they did—and went out with Victim and Girlfriend.
The evening started with drinks at Girlfriend’s aunt’s house, and
then the group decided to visit a bar in Salt Lake City, Utah. En
route to the bar, they stopped at Bonds’s apartment to smoke
some marijuana, and continued to drink alcohol, having brought
a bottle with them in the car.
¶3 Once the couples arrived at the bar, however, the evening
began to turn sour. They encountered a man (Man) in the bar
who had allegedly sexually assaulted Wife on a prior occasion.
Bonds confronted Man about the incident, but Wife also argued
with Bonds because she “was mad that [Bonds] didn’t do
anything in the first place.” Meanwhile, Victim and Girlfriend
were arguing in another section of the bar about some cocaine
that Girlfriend had apparently lost. Eventually, Girlfriend and
Wife tried to leave the bar without the men, but Bonds and
1. “We recite the facts in the light most favorable to the verdict,
presenting conflicting evidence only as necessary to understand
the issues on appeal.” State v. Salgado, 2018 UT App 139, ¶ 2 n.1,
427 P.3d 1228.
20180238-CA 2 2019 UT App 156State v. Bonds
Victim followed them outside. Victim thought Girlfriend was too
intoxicated to drive, and expressed his opinion on the issue by
punching the driver’s side door of her car. Eventually, Bonds
and Victim got into the car and the four of them drove off.
Victim continued to vociferously opine that Girlfriend was too
intoxicated to drive, and eventually Girlfriend pulled over to let
Victim drive. At this point, Bonds began talking about going
back to the bar to “get [Man]” and later speculated that they
might “shoot up the bar” in the process.
¶4 Once they got back to Bonds’s apartment, Bonds went
inside to retrieve a gun, coming back outside with it before
anyone else went inside. At this point Girlfriend wanted to go
home, but Victim insisted on staying to “have his friend’s back.”
When Bonds told Wife that he and Victim were going to go back
to the bar, Girlfriend told Victim that, if he left with Bonds, she
wanted nothing more to do with him. Neither woman felt
threatened at this time, and they eventually went inside the
apartment to have another drink, leaving the two men outside
by themselves.
¶5 A few minutes later, around 2:00 a.m., the women heard
gunshots outside. They heard first a single shot, then about a
ten-second pause, then two or three more shots. Very shortly
thereafter, Bonds came to the door of the apartment and told the
women that he had just shot Victim; Bonds did not say anything
more about any reason for the shooting, and did not offer
additional details. Bonds then left the scene.
¶6 Girlfriend then ran outside and found Victim, a few
buildings away within the same apartment complex, bleeding
from a gunshot wound in his back. Victim was still conscious,
and asked Girlfriend where Bonds was and said, “I can’t believe
he did this.” A neighbor called the authorities and Victim was
promptly taken to the hospital, where he died from his wounds
at approximately 2:50 a.m. In addition to the gunshot wound in
20180238-CA 3 2019 UT App 156State v. Bonds
his back, Victim had also been shot in the front of his arm, just
below the elbow crease. According to autopsy results, Victim
had a blood alcohol content of .141 and also tested positive for
THC, the primary psychoactive ingredient in marijuana.
¶7 After leaving the scene, Bonds called a friend to ask for a
ride, and in the course of the five-minute conversation, told him
that he had just shot Victim, although he offered no reason why
the shooting occurred. The friend thought Bonds seemed “drunk
and high,” and declined Bonds’s request for a pick-up.
¶8 A few minutes later, at 2:17 a.m., police located Bonds at a
convenience store and arrested him; during the course of the
arrest, they found Bonds to be unarmed and compliant. Other
than telling officers, while he was being arrested, that he did not
have a gun on him, Bonds remained “pretty quiet” during his
interactions with the officers, and the officers did not ask him
any questions. By about 2:20 a.m., officers had transported
Bonds to the police station and ushered him into a small
interview room that contained a video camera; Bonds’s entire
experience in that room was recorded. Officers instructed Bonds
to sit, handcuffed, in a chair in the corner of the room, and told
him that someone would come soon to “talk to” him. But officers
decided to first speak with both Wife and Girlfriend, and so it
took them some time to get around to speaking with Bonds. As
the hours ticked by, officers would occasionally come into the
interview room to check on Bonds, sometimes loosening his
cuffs or giving him water, and instructing him that he was to
remain in the chair. Bonds attempted to sleep in the chair, but
found it difficult to do so while handcuffed. At 5:55 a.m., officers
escorted Bonds to a “break room” with a couch, where Bonds
was able to sleep for about an hour. At about 7:00 a.m., officers
brought Bonds back to the small interview room, and two
detectives (Detectives) began interviewing Bonds at 7:07 a.m.
20180238-CA 4 2019 UT App 156State v. Bonds
¶9 Before interviewing Bonds, officers had spoken with both
Wife and Girlfriend, and although the record does not contain
transcripts or video of those interviews, Detectives were aware
of those witnesses’ observations before interviewing Bonds. In
addition to some of the facts recited above, Detectives were also
aware that Bonds had at one point been diagnosed with bipolar
disorder, even though he had not taken any medication for that
condition in about a year. Detectives would later testify that they
did not observe any signs of intoxication or mental illness in
Bonds by the time they spoke with him, some five or six hours
after he would have last consumed alcohol or drugs.
¶10 After getting basic contact information from Bonds and
exchanging pleasantries, Detectives advised Bonds of his
Miranda 2 rights and asked him if he understood those rights and
whether he wished to talk to Detectives about the events of that
past night. Bonds agreed to answer questions, and offered, as his
initial version of events, that he “didn’t do nothing to nobody”
and that he had gotten into an altercation with Man at the bar
but that was it. When first asked about his later encounter with
Victim, Bonds stated that he “heard gunshots” but that he “was
never around when the gunshots came around” and that the
blood on him was not from the incident with Victim. Detectives
did not believe Bonds’s denial, and told Bonds that they had
“talked to a lot of people” and that Bonds did not “know
everything that we know.” Bonds then stated that he and Victim
had gotten into a fistfight at the bar, and that he and Victim had
fought again outside his apartment, but continued to maintain
that he had “no access to no gun at all” and that he had “been
actually in the clean.”
¶11 Detectives then told Bonds that they knew he had been in
possession of a gun “because there’s like at least three to four
2. Miranda v. Arizona, 384 U.S. 436, 468–69 (1966).
20180238-CA 5 2019 UT App 156State v. Bonds
people that saw you with a gun out in front of your apartment
tonight.” Bonds continued to deny possession of any gun, and
Detectives continued to press, telling Bonds that he needed “to
start being honest and up front,” and reiterating that people had
seen him with a gun, had heard shots fired, and had “see[n]
[Victim] get shot” by Bonds. Bonds appeared frustrated by these
comments, questioning how anybody could have seen Victim
get shot “when me and [Victim] was outside by our self,” and
telling Detectives that he knew his rights and that he knew what
they were trying to do because his mother had previously been a
deputy sheriff.
¶12 Detectives then took a different tack, softening their tone
and telling Bonds that he seemed like a “nice guy and respectful
and everything” and “it sounds like a mistake was made
tonight,” even implying that he might have been trying to
protect Wife or his children. After Bonds shared with Detectives
that he was a religious man, Detectives asked Bonds “what God
would want [him] to do at this point” about “coming clean and
everything else.” In this same vein, Detectives told Bonds that
Wife “wants you to do the right thing” and that his children
would one day respect the fact that he had “manned up to it and
he did the right thing afterwards.”
¶13 Bonds then asked for a cigarette and asked Detectives
“what am I facing?” Though Detectives knew at that point that
Victim had died, they told Bonds that, as far as they knew,
Victim was “in the hospital” and that they did not know any
further details about “what happened and what’s going on with
him.” After telling Detectives that “you all the coolest detectives
I’ve ever met in my life in Utah,” Bonds again stated that his
mother had been a sheriff, and Detectives asked Bonds what he
thought his mother would want him to do. After some
additional back-and-forth, Bonds then made the following
statement: “I don’t know where that gun at man, but I did shoot
[Victim] . . . .” Bonds stated that he “shot three shots,” and that
20180238-CA 6 2019 UT App 156State v. Bonds
the shooting occurred somewhere between his apartment and
his mother-in-law’s apartment.
¶14 After confessing to the shooting, Bonds offered additional
details, giving Detectives a description of the gun, and telling
Detectives that he gave the gun to Wife’s mother after the
shooting (an allegation his mother-in-law later denied; the gun
was eventually found outside a neighboring apartment building,
wrapped in a sweatshirt). Bonds described a scuffle between him
and Victim where Victim attempted to grab the gun from him,
the gun fell to the ground and discharged, and Bonds shot
Victim as soon as he recovered the gun. According to Bonds,
Victim had “said some crazy shit” during the altercation,
including a threat to “shoot this whole house and these kids,” a
threat that Bonds claimed put him “in a rage” at Victim bringing
his “kids in this,” and causing him to vow that “nobody gonna
hurt my kids.”
¶15 Bonds was eventually charged with murder; felony
discharge of a firearm with serious bodily injury; three counts of
felony discharge of a firearm; and possession of a firearm by a
restricted person. After some pretrial proceedings, Bonds filed a
motion to suppress the statements he made during the
interview, arguing that he was intoxicated to a degree that he
did not understand his rights, and that his statements during his
interview were involuntary and were the product of coercive
police tactics. The trial court denied the motion, finding that
Bonds knowingly and intelligently waived his rights, and that
his confession was not coerced.
¶16 At trial, Bonds’s counsel acknowledged to the jury that
Bonds had indeed shot Victim, but argued that he acted in
defense of himself and/or his Wife and children. In support of
that defense, Bonds sought—and the court agreed to give—
various instructions on self-defense, including instructions about
imperfect self-defense and manslaughter. The instructions
20180238-CA 7 2019 UT App 156State v. Bonds
specifically addressing self-defense and imperfect self-defense
correctly stated that the State bore the burden of proving beyond
a reasonable doubt that self-defense does not apply. But the
separate instruction (Instruction No. 35) setting forth the
elements of murder and manslaughter stated as follows:
Before you can convict the Defendant, Christopher
Bonds, of the lesser included offense of
Manslaughter in Count 1 of the Information, you
must find from all of the evidence and beyond a
reasonable doubt each and every one of the
following elements of that offense:
***
1. Christopher Bonds;
2. Commits murder (See instruction no. 30)
3. but is found to having acted in accordance with
an imperfect self defense. (See instruction no. 51)
After you carefully consider all the evidence in this
case, if you are convinced that each and every
element has been proven, beyond a reasonable
doubt, then you must find the defendant, GUILTY.
On the other hand if you are not convinced that
each and every element has been proven, beyond a
reasonable doubt, then you must find the
defendant NOT GUILTY.
¶17 At trial, the State presented testimony from Girlfriend and
officers who responded to the scene. Bonds did not testify, but
the State showed the jury a video recording of his interview with
Detectives. In his cross-examination of Girlfriend, Bonds’s
counsel stressed that everyone was intoxicated and that Victim
had been arguing, sometimes violently, with Girlfriend
20180238-CA 8 2019 UT App 156State v. Bonds
throughout the night. In his closing argument, Bonds’s counsel
argued that Bonds acted in self-defense or imperfect self-defense,
in order to protect his children from Victim, and specifically
referred the jury to the instructions regarding self-defense. In its
closing argument, the State acknowledged that, at the time of the
shooting, Victim was running in the general direction of Bonds’s
mother-in-law’s apartment, where Bonds’s children were
staying. The State also emphasized Bonds’s silence while being
arrested, noting that Bonds “said nothing . . . about defending
himself and others,” to arresting officers, and commenting that
“common sense” would seem to dictate that someone who truly
acted in self-defense would say something about self-defense
while being arrested.
¶18 After deliberating, the jury convicted Bonds of murder,
discharge of a firearm with serious bodily injury, and two counts
of discharge of a firearm, but acquitted him on one count of
discharge of a firearm. The jury also found that Bonds had been
in possession of a gun on the night in question, and the court
later found Bonds guilty of possession of a firearm by a
restricted person, based on the jury’s finding that Bonds had
possessed a gun as well as the parties’ stipulation that, due to a
prior felony conviction, Bonds was a restricted person not
allowed to possess one. The trial court later agreed to merge the
discharge of a firearm conviction and the murder conviction. The
court eventually sentenced Bonds to prison, to serve a term of
fifteen years to life for the murder charge.
ISSUES AND STANDARDS OF REVIEW
¶19 Bonds now appeals his convictions, 3 and raises two issues
for our review. First, Bonds argues that the trial court erred
3. Although Bonds does not specifically so state, we do not
construe Bonds’s appeal as challenging his conviction for
(continued…)
20180238-CA 9 2019 UT App 156State v. Bonds
when it admitted Bonds’s statements from the police interview
into evidence, and asserts that his confession was coerced.
“The ultimate determination” of whether a confession was
voluntary “is a legal question; accordingly, we review the
district court’s ruling for correctness. We set aside a district
court’s factual findings only if they are clearly erroneous.” State
v. Rettenberger, 1999 UT 80, ¶ 10, 984 P.2d 1009 (quotation
simplified). 4 However, when the trial court’s conclusion is based
on a review of interrogation transcripts, “we are in as good a
position as the district court to examine the transcripts and
determine what the law is,” and accordingly “we owe the
district court no deference.” 5 State v. Arriaga-Luna, 2013 UT 56,
¶ 8, 311 P.3d 1028.
(…continued)
possession of a firearm by a restricted person. None of the
arguments Bonds advances on appeal involve issues relevant to
that conviction. Moreover, neither at trial nor on appeal has
Bonds contested the fact that he shot Victim, and Bonds
stipulated that he was a restricted person for the purposes of the
charge. Under the circumstances, we do not perceive any
challenge to his conviction on this count.
4. Recently, our supreme court wondered whether correctness is
truly the appropriate standard of review in cases in which a trial
court has made a determination as to the voluntariness of a
confession. State v. Apodaca, 2019 UT 54, ¶ 29 n.6. But the court
stopped short of overruling the statement in State v. Rettenberger,
1999 UT 80, ¶ 10, 984 P.2d 1009, to that effect, see Apodaca, 2019
UT 54, ¶ 29 n.6, and therefore we consider that statement to be
controlling.
5. In addition to reviewing the transcript of Bonds’s interview
with Detectives, we have also reviewed the entire video
(continued…)
20180238-CA 10 2019 UT App 156State v. Bonds
¶20 Second, Bonds argues that his trial counsel provided
ineffective assistance by (a) failing to object to the elements jury
instruction that, in his view, improperly stated the burden of
proof for imperfect self-defense, and (b) failing to object when
the State elicited testimony regarding Bonds’s post-arrest silence
and then used that evidence to argue that Bonds must not have
acted in self-defense. “When a claim of ineffective assistance of
counsel is raised for the first time on appeal, there is no lower
court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as
a matter of law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336
P.3d 587 (quotation simplified).
ANALYSIS
I. Motion to Suppress Confession
¶21 “The due process clauses of the Fifth and Fourteenth
Amendments of the U.S. Constitution protect individuals from
being compelled to incriminate themselves.” State v. Arriaga-
Luna, 2013 UT 56, ¶ 9, 311 P.3d 1028. This right protects only
against “compulsory self-incrimination.” Michigan v. Tucker, 417
U.S. 433, 439 (1974). Indeed, “those competent and freewilled to
do so may give evidence against the whole world, themselves
included.” United States v. Washington, 431 U.S. 181, 187 (1977)
(quotation simplified); see also United States v. Monia, 317 U.S.
424, 427 (1943) (stating that the Fifth Amendment “speaks of
compulsion” and “does not preclude a witness from testifying
voluntarily in matters which may incriminate him”); State v.
Piansiaksone, 954 P.2d 861, 865 (Utah 1998) (“Admissions of guilt
by wrongdoers, if not coerced, are inherently desirable.”
(…continued)
recording of that interrogation, including the hours when Bonds
was alone in the interview room.
20180238-CA 11 2019 UT App 156State v. Bonds
(quotation simplified)). In this case, Bonds maintains that his
confession was coerced, and that therefore its admission into
evidence violated his constitutional rights.
¶22 In analyzing a defendant’s claim that his confession was
coerced, the overarching question that courts must answer is
“‘whether, considering the totality of the circumstances, the free
will of the witness was overborne.’” Arriaga-Luna, 2013 UT 56,
¶ 9 (quoting Washington, 431 U.S. at 188). This analysis requires a
court to look at all of the circumstances collectively; indeed, even
in cases where “no one single issue or specific circumstance is
egregious enough by itself to qualify as coercive,” “coercion may
still result from the cumulative effect of many relatively minor
issues.” State v. Apodaca, 2019 UT 54, ¶ 28 (quotation simplified).
¶23 In assessing the totality of the circumstances, courts must
take into account “both the characteristics of the accused and the
details of the interrogation.” Arriaga-Luna, 2013 UT 56, ¶ 10
(quotation simplified). The “details of the interrogation” include
“external factors, such as the duration of the interrogation, the
persistence of the officers, police trickery, absence of family and
counsel, and threats and promises made to the defendant by the
officers.” Id. (quotation simplified). The “characteristics of the
accused” is a reference to “subjective” factors that “may affect [a
witness’s] susceptibility to more subtle forms of psychological
persuasion,” including “the defendant’s mental health, mental
deficiency, emotional instability, education, age, and familiarity
with the judicial system.” Id. (quotation simplified). Finally, for a
confession to be involuntary, “there must be a causal
relationship between the coercion and the subsequent
confession.” Piansiaksone, 954 P.2d at 865 (quotation simplified).
¶24 Bonds contends that both objective and subjective factors
point toward a determination that his confession was
unconstitutionally coerced. Although we agree with Bonds that
Detectives’ behavior in this case was not perfect, after examining
20180238-CA 12 2019 UT App 156State v. Bonds
the totality of the circumstances presented, we are unpersuaded
that Bonds’s free will was overborne by Detectives’ actions.
A. Objective Factors
¶25 Bonds argues that some of Detectives’ actions during the
interrogation were improper and created an atmosphere of
coercion. Specifically, Bonds asserts that Detectives “used threats
and promises, the false friend technique, misrepresentations,
isolation, and references to his family and religion.” We examine
these contentions in turn.
¶26 With regard to threats and promises, Bonds correctly
points out that “an interrogation can be impermissibly coercive
because it carried a threat of greater punishment or a promise for
lesser punishment depending on whether a defendant
confessed.” State v. Rettenberger, 1999 UT 80, ¶ 29, 984 P.2d 1009(quotation simplified). Bonds contends that Detectives used
threats and promises to compel his confession by telling Bonds,
among other things, that “you’re gonna see your son” and that
they would “put . . . in the[ir] report” the fact that Bonds had
been cooperative. In our judgment, however, these statements
cannot fairly be characterized as “implicit threats [that] can
constitute psychological coercion and overcome a defendant’s
free will.” Arriaga-Luna, 2013 UT 56, ¶ 17. At no point during the
interview did Detectives ever convey to Bonds “a threat of
greater punishment or a promise for lesser punishment
depending on whether [he] confessed.” Rettenberger, 1999 UT 80,
¶ 29 (quotation simplified). Indeed, Detectives did not tell Bonds
what he was charged with until after he confessed to the
shooting. And Detectives’ statement about making a note in their
report that Bonds had been cooperative was immediately
followed by a statement by one of the Detectives that “I’m not
promising anything so don’t get me wrong.” And in any event, a
“mere representation to a defendant by officers that they will
make known to the prosecutor and to the court that the
20180238-CA 13 2019 UT App 156State v. Bonds
defendant cooperated with them” is not coercive. Apodaca, 2019
UT 54, ¶ 31 (quotation simplified). Moreover, Detectives’
statement that Bonds would get to see his son was not unduly
coercive; even jail inmates have visitation rights, and the
statement was not accompanied by any promise of when, or
under what circumstances, Bonds might get to see his son. In
short, we do not construe the statements Bonds identifies as
threats or promises, and certainly not as statements that were
impermissibly coercive.
¶27 Bonds next contends that Detectives used the “false friend
technique”—an interrogation tactic whereby officers represent
“that they were [the suspect’s] friends and that they were acting
in his best interest,” see Rettenberger, 1999 UT 80, ¶ 24—when
they called him “bud” and “friend,” and told him that they were
trying to “be fair” and wanted to “give [Bonds] the chance to
give [his] side of the story.” We are not persuaded that
Detectives’ friendliness crossed the line into impropriety. Here,
while Detectives were certainly friendly to and empathized with
Bonds at several points, they never represented that they were
acting in his best legal interests. Unlike in Rettenberger, see id.¶¶ 27–28, there is no point in the interrogation where Bonds
appears to believe that Detectives were trying to protect his
interests, nor does he ever appear to go along with Detectives’
version of events—indeed, as discussed below, he took issue
with Detectives when they made claims about eyewitnesses that
were not completely true. Moreover, the false friend technique,
by itself, is not “sufficiently coercive to produce an involuntary
confession.” Id. ¶ 28. Rather, it merely “provides an environment
in which other interrogation tactics may become coercive,” id.
and where “the suspect is fooled into trusting that the
interrogator's behavior will conform to the norms of friendship,”
id. ¶ 24 (quotation simplified). Detectives created no such
environment here. See Apodaca, 2019 UT 54, ¶ 38 (stating that,
although officers clearly “tried to establish rapport with” the
20180238-CA 14 2019 UT App 156State v. Bonds
suspect, their statements “simply demonstrate a desire to work
with [the suspect] to solve the case” and were not coercive).
¶28 Bonds next complains that Detectives misrepresented the
evidence that they had at their disposal. “[I]n certain cases,
police misrepresentations may be sufficiently egregious to
overcome a defendant’s will so as to render a confession
involuntary.” Rettenberger, 1999 UT 80, ¶ 20. However, “a
defendant’s will is not overborne simply because he is led to
believe that the government’s knowledge of his guilt is greater
than it actually is.” Id. (quotation simplified). In this case,
Bonds’s contention that Detectives made at least some
misrepresentations of the facts is correct: in their questioning of
Bonds, Detectives did embellish the information they had
apparently been given from Wife and Girlfriend, and Detectives
were less than forthcoming with Bonds about what they knew
about Victim’s condition. By the time they spoke with Bonds,
police officers had already spoken with Wife and Girlfriend,
who had seen him with a gun and identified him as the shooter.
Detectives did not act improperly by weaving that information
into the questions they put to Bonds. But Detectives went further
than that: even though they had not yet talked to any other
witnesses, and had not talked to anyone who actually saw Bonds
shoot Victim, on several occasions during the interrogation they
told Bonds that they had spoken with “at least three to four
people that saw you with a gun out in front of your apartment
tonight,” and that there had been several eyewitnesses who
actually saw Bonds shoot Victim. Detectives also told Bonds that
they did not know the current status of Victim’s condition, even
though by that point they already knew that Victim had passed
away, and that the case was potentially a murder case rather
than an assault case.
¶29 Thus, the question with which we must contend is not
whether Detectives made misrepresentations—they did—but
whether those misrepresentations were “sufficiently egregious,”
20180238-CA 15 2019 UT App 156State v. Bonds
see id., to overcome Bonds’s free will during the interview. On
this record, while we do not condone Detectives’ prevarications,
we are not persuaded that Detectives’ actions caused Bonds to
render an involuntary confession. Our conclusion is driven by
analysis of two cases: Rettenberger and State v. Werner, 2003 UT
App 268, 76 P.3d 204.
¶30 In Rettenberger, the interrogating officers made no fewer
than “36 false statements” while interviewing an eighteen-
year-old suspect with a “maturity level of a fifteen-year-old” and
a “below-average I.Q.” 1999 UT 80, ¶¶ 21, 37. The
“overwhelming majority” of the officers’ misrepresentations
“were not merely ‘half-truths’ but were complete fabrications
about testimonial and physical evidence.” Id. ¶ 21. Officers told
the suspect that he was the subject of an undercover
investigation, and that they had fingerprint, ballistic, and other
physical evidence tying him to the scene as well as the testimony
of “numerous eye-witnesses and co-defendants implicating
him.” Id. They also told him that they had “records of phone
conversations incriminating him,” that they “had found blood in
his car,” and that they had more evidence against him “than the
police had in the O.J. Simpson case.” Id. All of these statements
were outright lies, and our supreme court determined that the
officers had acted with “[e]xtreme duplicity.” Id. ¶ 23. The court
concluded that this behavior, viewed together with the totality of
the circumstances presented, rendered involuntary the
confession they eventually extracted. Id. ¶ 45.
¶31 In Werner, by contrast, the interviewing officers also made
certain misrepresentations, but their exaggerations were not as
egregious as those described in Rettenberger. In Werner, the
interviewing officers told the suspect that “there was
‘overwhelming evidence against him,’” and on two separate
occasions told him they had a surveillance tape showing him at
the scene, going as far as putting a blank video tape labeled
“Mall Security of [Suspect] in the Parking Lot” in the
20180238-CA 16 2019 UT App 156State v. Bonds
interrogation room. 2003 UT App 268, ¶ 30 & n.4. In our written
opinion, this court was careful not to “condone the video tape
hoax,” but we noted that there was “significant other evidence of
[the suspect’s] guilt” that supported the officers’ assertion that
there existed “overwhelming evidence.” Id. ¶¶ 30–32 (quotation
simplified). After assessing the totality of the circumstances
presented, we concluded that the officers’ behavior was not
“sufficiently egregious . . . so as to render [the] confession
involuntary.” Id. ¶ 32 (quotation simplified).
¶32 We find Detectives’ misrepresentations to be far less
egregious than those described in Rettenberger, and at least
somewhat less egregious than those described in Werner. In this
case, Detectives told Bonds that “at least three to four people . . .
saw you with a gun,” that there were eyewitnesses who saw
Bonds shoot Victim, and that they did not know Victim’s status.
These statements were more like “half-truths,” Rettenberger, 1999
UT 80, ¶ 21 (quotation simplified), than outright lies; indeed,
officers had spoken to two people (although not “three to four”)
who saw Bonds with a gun, and although there were no
eyewitnesses who saw Bonds shoot Victim, the witnesses on the
scene had identified Bonds as the shooter. Moreover, while
Detectives were not completely forthcoming with Bonds about
Victim’s condition, their falsehood was that they did not know
Victim’s condition; they made no affirmative misrepresentation
that, for instance, Victim was fine and would fully recover. In
addition, Bonds did not appear to be falling for Detectives’
tricks; he challenged their representation about eyewitnesses
seeing him shoot Victim, told them that he knew what they were
up to because his mother had been a deputy sheriff, and
appeared to become fairly uncooperative when confronted with
the misrepresentations. Perhaps as a result, Detectives quickly
changed course and did not repeat the statements. In our view,
Detectives’ actions—while perhaps falling short of exemplary
police behavior—did not, in this case, cause Bonds’s free will to
be overborne or to render his confession involuntary.
20180238-CA 17 2019 UT App 156State v. Bonds
¶33 Bonds next asserts that officers improperly subjected
Bonds to “extended periods of incommunicado interrogation.”
See Rettenberger, 1999 UT 80, ¶ 33. In advancing this argument,
Bonds relies on Rettenberger, in which the suspect was
interrogated in seriatim fashion over a two-day period; the first
interrogation lasted about “two hours,” after which the suspect
was “placed in solitary confinement where he spent
approximately 22 hours with neither pillow nor blanket” and
was not allowed, despite requests, to contact anyone, including
his parents or his attorney, and then officers interrogated him a
second time. See id. Bonds contends that his isolation in the
interrogation room contributed to a coercive environment, but
his isolation bears little resemblance to that in Rettenberger. In
this case, Bonds was by himself for only five hours while
Detectives got to the station and gathered other information; for
one of these hours, Bonds was escorted into a “break room”
where he was allowed to sleep on a couch. Our supreme court
has made clear that “five to six hour interrogations are not in
and of themselves coercive.” Apodaca, 2019 UT 54, ¶ 42. Further,
before confessing to the shooting, Bonds made no request to
contact any other adult. While it may have been optimal for
Detectives to have interviewed Bonds sooner, we cannot fault
Detectives for wanting to speak with Wife and Girlfriend before
speaking with Bonds, and we do not view the sequence of events
that transpired in this case as unduly coercive.
¶34 Finally, Bonds faults Detectives for making appeals to his
morality, family, and religion, and contends that those appeals
created a coercive atmosphere. But “appeals to a defendant’s
sense of morality and responsibility are usually non-coercive,”
Arriaga-Luna, 2013 UT 56, ¶ 21, and we see nothing coercive
about Detectives’ appeals to Bonds’s faith or his admiration for
his mother, a retired sheriff’s deputy. “The Fifth Amendment
privilege is not concerned with moral and psychological
pressures to confess emanating from sources other than official
20180238-CA 18 2019 UT App 156State v. Bonds
coercion.” Berghuis v. Thompkins, 560 U.S. 370, 387 (2010)
(quotation simplified).
B. Subjective Factors
¶35 Bonds also contends that various subjective factors
regarding his personal circumstances contributed to a coercive
environment during the interview. “[U]nder the totality of
circumstances analysis, courts must also consider such factors as
the defendant’s mental health, mental deficiency, emotional
instability, education, age, and familiarity with the judicial
system.” Rettenberger, 1999 UT 80, ¶ 15. Bonds argues that
Detectives took advantage of these personal or subjective
characteristics, thus making his interrogation coercive. We view
the matter differently.
¶36 Bonds first asserts that Detectives were aware that he had
been drinking heavily on the evening in question, and that
Bonds described himself as “intoxicated” at the end of the
interview. But according to Detectives, Bonds displayed no signs
of being intoxicated or impaired, and our review of the interview
video aligns with Detectives’ observations. Indeed, by the time
Detectives interviewed Bonds, it had been at least five or six
hours since he had last consumed any intoxicating substance.
There is simply insufficient evidence that Bonds was too
intoxicated to give voluntary responses to Detectives’ questions.
¶37 Bonds also contends that he was “exhausted” by the time
Detectives interviewed him, and points out that he had obtained
only fitful moments of sleep in the interview room, and then had
one hour of presumably less-fitful sleep in the break room, and
that by 7:00 a.m. he had essentially been up all night and was in
no condition to speak with Detectives. We have no reason to
doubt Bonds’s contention that he was very tired. But, at least
after the first minute or two of the interview, Bonds appears
fully awake and alert and able to cogently respond to questions,
and we find no evidence in the record to support the contention
20180238-CA 19 2019 UT App 156State v. Bonds
that his fatigue was so severe that it led him to give answers to
questions he would not have given in a more rested state.
¶38 Bonds points out that he had previously been diagnosed
with bipolar disorder, and that mental illness is a factor that can
lead to coercive interrogation. See id. ¶ 18 (“[A] confession may
be suppressed in circumstances in which a police officer knows
of a suspect’s mental illness or deficiencies at the time of the
interrogation and effectively exploits those weaknesses to obtain
a confession.”). But, as noted, Detectives saw no sign of any
mental instability in Bonds during the interview, and Bonds
acknowledges that he had not taken medication for his condition
in over a year. On this record, Bonds has not persuaded us that
his mental illness was severe enough to be exploitable by
Detectives, or that Detectives exploited it in any event.
¶39 In this case, the actions of the police officers were not
perfect. They could perhaps have moved Bonds from the
interview room to the break room a bit sooner, to allow him to
catch a bit more sleep. And they certainly could have—and
should have—refrained from misrepresenting the evidence to
Bonds by telling him that eyewitnesses had seen him shoot
Victim, and that they did not know Victim’s current condition.
But on balance, after considering the totality of the
circumstances surrounding Bonds’s interrogation, see Apodaca,
2019 UT 54, ¶ 46, we are not persuaded that Bonds’s free will
was overborne. Accordingly, we conclude that the trial court did
not err by denying Bonds’s motion to suppress his confession.
II. Ineffective Assistance of Counsel
¶40 Bonds next argues that his trial counsel rendered
constitutionally ineffective assistance, in two respects: first, by
failing to correct or object to the jury instruction that listed the
elements of manslaughter, which misallocated the burden of
proof regarding self-defense; and second, by failing to object to
20180238-CA 20 2019 UT App 156State v. Bonds
statements made by the prosecution that may have had the effect
of equating Bonds’s silence with an admission of guilt.
¶41 In order to establish that his attorney provided ineffective
assistance, Bonds must make a two-part showing: (1) that his
attorney’s “performance was deficient in that it fell below an
objective standard of reasonableness,” and (2) that his attorney’s
deficient performance was “prejudicial,” meaning that “there is
a reasonable probability that but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
State v. Miller, 2012 UT App 172, ¶ 9, 281 P.3d 282 (quotation
simplified). We first address whether counsel performed
deficiently, and then turn to the question of prejudice.
A. Deficient Performance
¶42 To show deficient performance, a “defendant 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 actions.” State v. Clark,
2004 UT 25, ¶ 6, 89 P.3d 162 (quotation simplified). “The
defendant 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)
(quotation simplified). Because “[t]here are countless ways to
provide effective assistance in any given case,” and “[e]ven the
best criminal defense attorneys would not defend a particular
client in the same way,” id., “only when no reasonable attorney
would pursue the chosen strategy will we determine that
counsel has been constitutionally ineffective,” State v. Roberts,
2019 UT App 9, ¶ 29, 438 P.3d 885 (quotation simplified).
1
¶43 Bonds’s first complaint about his attorney’s performance
is that his attorney failed to object to jury instructions that,
collectively, spoke inconsistently about who bears the burden of
20180238-CA 21 2019 UT App 156State v. Bonds
proof for self-defense. Specifically, Bonds directs our attention to
Jury Instruction No. 35, which set forth the elements of the lesser
included offense of manslaughter. As noted above, that
instruction stated that, before the jury could convict Bonds of
manslaughter, it needed to find “beyond a reasonable doubt”
that Bonds “acted in accordance with an imperfect self defense.”
Bonds asserts—correctly—that this instruction misallocated the
burden of proof with regard to self-defense.
¶44 Imperfect self-defense is a legal doctrine that, where
applicable, operates to reduce a charge of murder to that of
manslaughter, and applies when “the defendant caused the
death of another . . . under a reasonable belief that the
circumstances provided a legal justification or excuse for the
conduct although the conduct was not legally justifiable or
excusable under the existing circumstances.” Utah Code Ann.
§ 76-5-203(4)(a) (LexisNexis 2017); see also State v. Lee, 2014 UT
App 4, ¶ 38, 318 P.3d 1164 (Voros, J., concurring) (“If, under the
facts as [the defendant] reasonably believed them to be, he
reasonably but incorrectly believed his actions were legally
justifiable, he acted in imperfect self-defense.”). Imperfect self-
defense differs from ordinary (or “perfect”) self-defense in two
primary respects: first, imperfect self-defense is only “a partial
defense” that, where applicable, results only in reduction of a
conviction from murder to manslaughter, whereas perfect self-
defense “is a complete defense to any crime” that, where
applicable, results in acquittal, id. ¶¶ 36–37; and second,
“imperfect self-defense applies when a defendant makes a
reasonable mistake of law,” whereas “perfect self-defense applies
when a defendant makes a reasonable mistake of fact,” id. ¶ 41.
For example, a defendant who “was entitled to defend himself”
but was “not entitled to use deadly force” may avail himself of
the imperfect self-defense doctrine regarding his use of deadly
force, at least insofar as he can show that his belief regarding the
necessity of deadly force was reasonable, even if legally
incorrect. See State v. Spillers, 2005 UT App 283, ¶ 25, 116 P.3d
20180238-CA 22 2019 UT App 156State v. Bonds
985, aff’d, 2007 UT 13, 152 P.3d 315; see also Lee, 2014 UT App 4,
¶ 44 (Voros, J., concurring) (stating that an imperfect self-defense
instruction would have been available had the defendant been
arguing “that he reasonably believed that the circumstances
justified his use of lethal force when in fact they justified only his
use of non-lethal force”).
¶45 As with other self-defense doctrines, a criminal defendant
is not obligated to prove that he acted in imperfect self-defense.
Instead, “once a defendant has produced some evidence of
imperfect self-defense, the prosecution is required to disprove
imperfect self-defense beyond a reasonable doubt.” State v.
Campos, 2013 UT App 213, ¶ 38, 309 P.3d 1160. “Because the
burden of proof for an affirmative defense is counterintuitive,
instructions on affirmative defenses must clearly communicate
to the jury what the burden of proof is and who carries the
burden.” Lee, 2014 UT App 4, ¶ 27 (quotation simplified).
¶46 Bonds contends that the jury instructions in this case,
viewed collectively, gave the jury the wrong idea about who
carried the burden of proof with regard to self-defense. Bonds
acknowledges that both the general instruction about self-
defense (Instruction No. 48), as well as the specific instruction
about imperfect self-defense (Instruction No. 51), both got it
right, clearly stating that “[t]he defendant is not required to
prove” that “self-defense applies,” and that it is the “State [that]
must prove beyond a reasonable doubt that the defense does not
apply.” But Bonds correctly points out that the governing jury
instruction setting forth the elements of manslaughter
(Instruction No. 35) was not as clear, telling the jury that, before
it could convict Bonds of the lesser included offense of
manslaughter, it needed to find “beyond a reasonable doubt”
that Bonds “acted in accordance with an imperfect self defense.”
¶47 The State, with somewhat surprising vigor, attempts to
defend this set of jury instructions, pointing out that both
20180238-CA 23 2019 UT App 156State v. Bonds
Instructions No. 48 and No. 51 correctly allocated the burden of
proof, and noting that Instruction No. 35—the troublesome
one—contained an explicit cross-reference directing the jury to
Instruction No. 51, and concluding that “the instructions read
together accurately stated the law.”
¶48 We might lend the State’s argument more credence, had
we not rejected nearly-identical arguments three times in recent
years. See State v. Garcia, 2016 UT App 59, ¶¶ 14–16, 370 P.3d 970,
rev’d on alternate grounds, 2017 UT 53, 424 P.3d 171; Lee, 2014 UT
App 4, ¶¶ 26–27; Campos, 2013 UT App 213, ¶¶ 37–43. In Campos,
the imperfect self-defense instruction itself correctly set forth the
burden of proof, but the verdict form submitted to the jury
required the jury to find “beyond a reasonable doubt, that the
defense of Imperfect Self Defense applies in this case.” 2013 UT
App 213, ¶ 39 (emphasis omitted). We held that, despite the fact
that the imperfect self-defense instruction “properly described
the burden of proof,” the instructions to the jury, taken as a
whole, were erroneous, because “the verdict form directly
contradicted that instruction by asking the jury to find either that
the affirmative defense had been disproved beyond a reasonable
doubt, or that it had been proved beyond a reasonable doubt.”
Id. ¶ 43 (emphasis omitted). In Lee, we were presented with an
elements instruction nearly identical to the one at issue here, and
we found the instructions improper. 2014 UT App 4, ¶ 27. And
in Garcia, we were presented with a situation materially
indistinguishable from this one, in which the imperfect self-
defense instructions correctly allocated the burden of proof, but
the elements instruction stated that “[b]efore you can find” the
defendant guilty of manslaughter, “you must find beyond a
reasonable doubt” that, among other things, “[t]he affirmative
defense of imperfect-self defense does not apply.” 2016 UT App
59, ¶ 14. We rejected the same argument the State makes here,
stating that “dueling instructions—in conflict as to how the jury
should consider the defense—cannot satisfy” the defendant’s
“entitlement to a correct instruction.” Id. ¶ 16.
20180238-CA 24 2019 UT App 156State v. Bonds
¶49 The State makes a last effort to defend the instructions
here by referencing Instruction No. 35’s explicit cross-reference
to Instruction No. 51. While we acknowledge that the
instructions in Campos, Lee, and Garcia had no such explicit cross-
reference, we are unpersuaded that this distinction matters. Even
without an explicit cross-reference, a jury that reads about
imperfect self-defense in an elements instruction is likely to refer
to the more specific instruction about imperfect self-defense. We
are unpersuaded that the explicit cross-reference present in
Instruction No. 35 is that much more effective than the implicit
cross-references that were inherent in the instructions at issue in
the other cases; at a minimum, we are unconvinced that this
relatively minor factual difference is enough to render the other
three cases inapplicable. 6
6. The State also cites hopefully to State v. Nelson, 2015 UT 62, 355
P.3d 1031, where our supreme court stated that jury instructions
that “could have been slightly more accurate or more complete”
but are nonetheless accurate, are not erroneous. Id. ¶ 47. But this
general language does not help the State here, because in Nelson,
the jury instructions were not inaccurate, and certainly did not
misstate the burden of proof. See id. (“[T]he instructions . . .
directed the jury to reduce the relevant conviction by one degree
if it found that the State had failed to disprove imperfect self-
defense.”). We have repeatedly held that “because the burden of
proof required for affirmative defenses is counter-intuitive, the
prosecution’s responsibility should be made plain to the jury,”
State v. Campos, 2013 UT App 213, ¶ 42, 309 P.3d 1160 (quotation
simplified), and have stated that “self-defense instructions . . .
must clearly communicate to the jury what the burden of proof
is and who carries the burden,” id. (quotation simplified). Our
supreme court had an opportunity, after Nelson, to weigh in on
our Campos/Lee/Garcia line of cases when it reviewed the Garcia
case, but it opted to reverse our decision in Garcia on alternative
(continued…)
20180238-CA 25 2019 UT App 156State v. Bonds
¶50 But our conclusion that the jury instructions were
erroneous does not necessarily mean that Bonds’s attorney
performed deficiently by failing to object to them. See, e.g.,
Strickland v. Washington, 466 U.S. 668, 689 (1984) (“Even the best
criminal defense attorneys would not defend a particular client
in the same way.”); State v. Larrabee, 2013 UT 70, ¶ 19, 321 P.3d
1136 (“If it can be shown that after thorough investigation of law
and facts relevant to plausible options counsel made a strategic
choice, then that choice is virtually unchallengeable.” (quotation
simplified)); id. ¶¶ 27–28 (stating that “under certain
circumstances, strategically refusing to object is an acceptable
trial strategy” and “it can be a legitimate strategy to remain
silent due to a fear of prejudice”). If, for instance, Bonds’s
attorney had a strategic reason for wanting the jury instructions
to contain that language, it would not necessarily be ineffective
assistance for the attorney to fail to object. But in this case, the
State mounts no argument (other than the one, rejected above,
that the instructions are not erroneous) that a reasonable
attorney might have elected to forgo an objection to these
instructions, and in this situation we see no applicable strategic
reason for Bonds’s attorney to prefer erroneous and confusing
jury instructions regarding the burden of proof germane to
affirmative defenses. Indeed, we think that a reasonable attorney
would have lodged an objection to those instructions, especially
in light of our holdings in Campos, Lee, and Garcia that the
attorneys in those cases had performed deficiently by failing to
object in very similar situations. See Garcia, 2016 UT App 59, ¶ 21
(concluding that trial counsel “performed deficiently” by failing
to object); Lee, 2014 UT App 4, ¶ 27 (stating that counsel has “a
(…continued)
grounds, noting in passing that the jury instruction at issue in
Garcia had indeed been incorrect. State v. Garcia, 2017 UT 53, ¶ 23
n.5, 424 P.3d 171. In short, we do not view the court’s statement
in Nelson as at odds with our rulings in Campos, Lee, and Garcia.
20180238-CA 26 2019 UT App 156State v. Bonds
duty to object to such a fundamentally flawed instruction and to
ensure that the jury was properly instructed on the correct
burden of proof,” and concluding that trial counsel “performed
deficiently in failing to object”); Campos, 2013 UT App 213, ¶ 45
(“[T]rial counsel’s failure to object to the verdict form fell below
an objective standard of reasonableness.”).
¶51 In short, we conclude that the jury instructions, taken
together, misstated the burden of proof applicable to Bonds’s
affirmative defense of imperfect self-defense, and that trial
counsel performed deficiently by failing to object to them. 7
2
¶52 Bonds’s next complaint about his attorney’s performance
is that the attorney failed to object to the State’s argument that, if
Bonds had truly acted in self-defense, he would have said so to
7. During oral argument before this court, counsel for the State
chided us for never having set forth, in our previous decisions,
an elements jury instruction for manslaughter in an imperfect
self-defense situation that would pass muster. In response, we
note simply that it is our task to review instructions given by
trial judges in particular cases, not to draft or suggest new ones
for general use by the bench and bar. Indeed, ably-staffed
committees of lawyers and judges have already been formed for
that purpose, and one of those committees recently generated
suggested instructions and a proposed verdict form that may
cover this situation. See Model Utah Jury Instructions 2d CR1411,
CR1450, CR1451, CR 1452, SVF 1450 (Advisory Committee on
the Model Utah Criminal Jury Instructions 2018), https://www.ut
courts.gov/resources/muji/ [https://perma.cc/2UA6-GDQN]. We
have, of course, not yet been asked to weigh in on the propriety
of those instructions and verdict form, and they are not at issue
in this appeal.
20180238-CA 27 2019 UT App 156State v. Bonds
the officers who arrested him at the convenience store at 2:17
a.m. Bonds asserts that the introduction of this evidence, and the
State’s use of it at trial, infringed on his Fifth Amendment right
against self-incrimination.
¶53 “Generally, the prosecution may not refer to or elicit
testimony concerning a defendant’s post-arrest silence.” State v.
Reyes, 861 P.2d 1055, 1057 n.2 (Utah Ct. App. 1993); see also
Mitchell v. United States, 526 U.S. 314, 330 (1999) (stating that the
Fifth Amendment protections against compulsory
self-incrimination prohibit “an inference of guilt from a
defendant’s rightful silence”). The State makes little effort to
defend the propriety of its own trial tactics in this regard,
acknowledging that, had Bonds’s trial counsel lodged an
objection to the State’s introduction of this evidence, “[c]ounsel
may very well have been able to keep the officer’s testimony on
the subject out.”
¶54 But the State does contend that Bonds’s trial counsel may
have had strategic reasons for not objecting to the officer’s
testimony about Bonds’s post-arrest silence. The State notes that
Bonds had three post-shooting encounters with people ((i) his
conversation with Wife and Girlfriend immediately after the
shooting; (ii) his telephone conversation with his friend; and (iii)
his encounter with the arresting officers at the convenience
store), and in none of those encounters did Bonds say anything
about having shot Victim in self-defense. The State therefore
posits that Bonds’s attorney was “still facing the prospect of
explaining why [Bonds] said nothing about defending his family
to two other witnesses,” and therefore could reasonably have
determined, for strategic reasons, to address the matter through
the officer’s testimony.
¶55 We find the State’s argument unconvincing. As Bonds
correctly points out, the other two conversations were with
civilians, not with police, and consisted of very short
20180238-CA 28 2019 UT App 156State v. Bonds
discussions. It is a lot easier to explain why Bonds did not
mention self-defense to the friend he called to ask for a ride than
it is to explain why Bonds did not mention to arresting officers—
who have the ability to deprive him of his freedom—that he had
some justification for shooting Victim. And it is a lot easier to
explain why Bonds did not mention self-defense on two
occasions than it is to explain why he did not mention it on three
occasions. The State does not explain why it would have been
better, from a strategic perspective, to address the issue through
the arresting officer’s testimony rather than through Girlfriend’s
testimony or through the friend’s testimony. We are unable to
discern any reason why reasonable counsel would have failed to
object to the arresting officer’s testimony about Bonds’s silence,
and we think a reasonable attorney would have done so.
Accordingly, we conclude that Bonds’s attorney performed
deficiently by failing to object to introduction of that evidence.
B. Prejudice
¶56 Because we have determined that Bonds’s trial attorney
rendered deficient performance in two particular respects, we
must now turn to the question of whether the attorney’s
deficient performance prejudiced Bonds. Deficient performance
is prejudicial to a defendant only when “there is a reasonable
probability that but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” State v.
Miller, 2012 UT App 172, ¶ 9, 281 P.3d 282 (quotation simplified).
In this context, the “‘reasonable probability’ standard” is less
exacting than “the more demanding ‘more likely than not’
standard.” Tillman v. State, 2005 UT 56, ¶ 29 n.7, 128 P.3d 1123(quoting Strickler v. Greene, 527 U.S. 263, 297–300 (1999) (Souter,
J., concurring and dissenting)), superseded in part by statute on
other grounds as stated in Gordon v. State, 2016 UT App 190, 382
P.3d 1063. The reasonable probability standard is “more akin to
a ‘significant possibility’ of a different result.” Id. (quotation
simplified). There is a “reasonable probability of a different
20180238-CA 29 2019 UT App 156State v. Bonds
result” when a court’s “confidence in the outcome of the trial” is
undermined. Id. ¶ 29 (quotation simplified); see also Strickland v.
Washington, 466 U.S. 668, 694 (1984) (“A reasonable probability is
a probability sufficient to undermine confidence in the
outcome.”). In this case, because we have identified two
instances of deficient performance, we analyze the prejudice
issue in cumulative fashion, see State v. Campos, 2013 UT App
213, ¶ 61, 309 P.3d 1160 (applying “the doctrine of cumulative
prejudice” in a similar situation), with the relevant overarching
question being this one: if the jury had been instructed correctly
as to the burden of proof regarding self-defense, and if it had not
heard the officer’s testimony and the prosecutor’s argument
about Bonds’s silence while being arrested, is there a significant
possibility that the result of the trial would have been different?
¶57 The State asserts that we can answer this question in the
negative, because “the evidence against [Bonds] was
overwhelming,” and because the facts of this case do not support
any claim of self-defense, whether perfect or imperfect. While
the evidence supporting Bonds’s self-defense claim is hardly
crystal clear, in our judgment there is sufficient evidence of self-
defense to cause us significant unease about the role counsel’s
decisions might have played in the outcome of the trial. 8
¶58 In his interview with Detectives, Bonds described a scuffle
between him and Victim where Victim attempted to grab the
gun from Bonds, the gun fell to the ground and discharged, and
Bonds shot Victim as soon as he recovered the gun. As Bonds
8. We note some strategic tension between Bonds’s two
arguments on appeal. The best evidence supporting Bonds’s
claim of self-defense came from Bonds’s own interview with
Detectives. Had Bonds succeeded in suppressing the interview,
the evidence supporting a self-defense claim would have been
extremely scant.
20180238-CA 30 2019 UT App 156State v. Bonds
described it, Victim “said some crazy shit” during the
altercation, and specifically threatened to “shoot this whole
house and these kids.” Bonds told police that Victim’s threats to
his family caused Bonds to become enraged and to vow that
“nobody gonna hurt my kids.” Certainly, a credible threat that
someone is planning to shoot a person’s children can give that
person reason to defend against that threat. Indeed, the jury in
this case was instructed—in an instruction to which no one
objected—that “[a] person is justified in threatening or using
force against another when and to the extent that the person
reasonably believes that force or a threat of force is necessary to
defend the person or a third person against another person’s
imminent use of unlawful force.” (Emphasis added.)
¶59 The State asserts, however, that the evidence cannot
support a determination that Bonds’s self-defense belief was
reasonable. The State correctly points out that Bonds had already
wrested the gun away from Victim by the time Bonds shot him,
and that Bonds shot Victim in the back, indicating that Bonds
himself was not at that point under any credible threat from
Victim. And the State asserts that there is no evidence to support
the notion that Victim was running toward either Bonds’s
apartment (where Wife and Girlfriend were) or toward Bonds’s
mother-in-law’s apartment (where Bonds’s children were).
¶60 But the State overstates it. We agree with the State that the
evidence on this point is far from clear; indeed, the fullest
description of Victim’s behavior at the time of the shooting
comes from Bonds’s own statement to police that Victim was
running “towards the back like where the apartments is at, like
where the parking at, where the trash can is at.” While the
record contains a map of the apartment complex and its
surroundings, there are no markings on the map indicating
where Victim was when he was shot or the direction Victim was
running. From our review of the trial transcript, it appears that
the State had each witness reference the map using a laser
20180238-CA 31 2019 UT App 156State v. Bonds
pointer (rather than a pen or marker), leaving no clear record for
us to review on appeal. But Bonds’s statement could be
interpreted to mean that Victim was running toward “where the
apartments is at,” and the State’s current position on appeal—
that there is no evidence to support the notion that Victim was
running toward one of the apartments—is belied by the
prosecutor’s statement during closing argument that he was “not
going to dispute” that Victim “ran in [the] direction” of mother-
in-law’s apartment. Moreover, even if the State were correct, and
there really were no evidence that Victim was running toward
the apartments, Bonds shot him before he had been able to run
more than a few feet, and we think it perilous to ascribe too
much weight to the apparent direction of Victim’s movement.
¶61 The State also sensibly points out that, after Bonds
successfully won the struggle for the gun, Victim had no other
weapon and was unarmed, and therefore was not at that point
capable of shooting Bonds’s children as he had allegedly
threatened to do. But even a person without a gun is capable of
visiting great harm upon children, and Bonds may have
reasonably believed that Victim, despite no longer having
possession of a gun, still might harm his children.
¶62 And this is where imperfect self-defense comes into play.
In situations where an individual reasonably believes that he
needs to defend himself or others, but may not have been
entitled to use deadly force in so doing, we have determined that
imperfect self-defense is available. See State v. Spillers, 2005 UT
App 283, ¶ 25, 116 P.3d 985 (stating that, where the evidence
supported “an interpretation that [Spillers] was entitled to
defend himself . . . but not entitled to use deadly force,” the
defendant was entitled to argue imperfect self-defense), aff’d,
2007 UT 13, 152 P.3d 315; Lee, 2014 UT App 4, ¶ 41 (Voros, J.,
concurring) (“We learn from Spillers that a defendant is entitled
to an instruction on imperfect self-defense if a jury could
conclude from the evidence that he reasonably but incorrectly
20180238-CA 32 2019 UT App 156State v. Bonds
believed he was justified in using lethal force against a non-
lethal attack.”). In addition, Bonds may also have made a
different legal error: as his attorney stated at oral argument
before this court, Bonds may have believed that Victim
presented a threat to his children, if not necessarily an
immediate one, and could have incorrectly (but reasonably)
believed that he was justified in using immediate force to stop a
non-immediate threat.
¶63 In this case, Bonds had some decent (if not totally
convincing) arguments regarding self-defense, and specifically
regarding imperfect self-defense. In a situation like this, the
instructions regarding the burden of proof on self-defense issues
might have mattered. It is certainly a lot easier for a jury to
conclude that self-defense has not been established beyond a
reasonable doubt than it is for a jury to determine that the State
has disproven self-defense beyond any reasonable doubt. And
the additional evidence about Bonds’s silence upon being
arrested—while probably not prejudicial on its own—
constituted another improper item on the State’s side of the
ledger. It is also worth noting that, in this case, the jury
deliberated for over ten hours, and acquitted Bonds of one
felonious discharge of a firearm count, perhaps indicating that it
credited his account of how the first shot was fired. See State v.
Richardson, 2013 UT 50, ¶ 44, 308 P.3d 526 (reasoning that a split
verdict can be an indication that “the jury was conflicted about
the evidence,” and that therefore errors committed during trial
might have made a difference).
¶64 In the end, we conclude that a reasonable probability
exists that, had the jury received proper instructions and had the
State’s inference of guilt from Bonds’s silence been kept from the
jury, the jury’s decision regarding self-defense and manslaughter
may have been different and, accordingly, our confidence in the
outcome has been undermined. Both errors went to the strength
of Bonds’s self-defense argument. Therefore, we conclude that,
20180238-CA 33 2019 UT App 156State v. Bonds
on the record before us, Bonds was prejudiced by his attorney’s
deficient performance.
CONCLUSION
¶65 The trial court did not err in denying Bonds’s motion to
suppress the police interview, in which he confessed to shooting
Victim but claimed to have done so in defense of his children.
But Bonds’s trial attorney rendered ineffective assistance by
failing to object to an incorrect and inconsistent set of jury
instructions, and by failing to object to introduction and use of
evidence about Bonds’s silence while being arrested, and we
have sufficient unease about the prejudicial effect of these errors
to justify a new trial. Accordingly, we reverse all of Bonds’s
convictions—except for his conviction for possession of a firearm
by a restricted person, which Bonds does not challenge here—
and remand this matter for a new trial.
20180238-CA 34 2019 UT App 156