State v Bond

Bond appealed his aggravated murder and kidnapping convictions arguing his motion for mistrial should have been granted, that his confrontation rights were violated when a co-defendant took the Fifth Amendment while on the stand and ineffective assistance of counsel. The Court affirmed. The Court held the mistrial motion was properly denied as the prosecutor did not call the codefendant to put the Fifth Amendment invocation before the jury as demonstrated by granting use immunity, offering to avid questions about stolen weapons and offering to strike the questions the codefendant refused to answer. Thus there was no basis to declare a mistrial. As to the confrontation issue, the Court first acknowledged that Utah precedent on who bears the burden when an unpreserved claim of federal constitutional error is raised and held that defendants bear the burden of proving prejudice as that is the rule in the federal system, promotes trial level resolution of claims and avoids the odd arrangement of requiring proof of prejudice for ineffective assistance claims which are almost never raised at trial yet relieve defendants from the need to preserve on issues which can a be raised at trial. Applying here, the court held that five of the questions Bond challenged were early cumulative and in any event did not undermine his coercion defense, one was consistent with Bond’s version of events and one was consistent with Bond’s interview which was placed in evidence. Thus, there was no prejudice and no ineffective assistance of counsel for failing to move for mistrial. The court also held that there was no ineffective assistance when trial counsel failed to move to merge convictions as predicate offenses and aggravated murder do not merge pursuant to Utah Code 76-5-202(5)and thus any motion to merge would have been futile.