State v. Bond
| Citation | 361 P.3d 104,2015 UT 88 |
| Decision Date | 30 September 2015 |
| Docket Number | No. 20130361.,20130361. |
| Court | Supreme Court of Utah |
| Parties | STATE of Utah, Appellee, v. Martin Cameron BOND, Appellant. |
Sean D. Reyes, Att'y Gen., John J. Nielsen, Asst. Att'y Gen., Salt Lake City, for appellee.
Jennifer Gowans Vandenberg, Park City, for appellant.
INTRODUCTION
¶ 1 A jury convicted Martin Bond of several heinous crimes, including aggravated kidnapping and aggravated murder. Mr. Bond challenges his convictions on three grounds. First, he argues the prosecutor committed misconduct by calling Benjamin Rettig, Mr. Bond's codefendant, to testify when Mr. Rettig had indicated an intention to invoke his Fifth Amendment privilege against self-incrimination and, therefore, the trial court abused its discretion in denying his motion for a mistrial.1Second, he contends the prosecutor violated his rights under the Confrontation Clause by using leading questions in questioning Mr. Rettig. Third, he asserts his lawyers were ineffective for failing to move to merge the conviction for aggravated kidnapping with the conviction for aggravated murder.
¶ 2 We reject each ground and affirm Mr. Bond's convictions. With respect to the first ground, Mr. Bond failed to establish that the prosecutor committed misconduct in calling Mr. Rettig to the stand. Consequently, the trial court did not abuse its discretion in denying his motion for a mistrial. As to the second ground, we take this opportunity to clear up a point of significant confusion in our case law and expressly hold that the burden of demonstrating prejudice for an unpreserved federal constitutional claim rests with the defendant on appeal. And because Mr. Bond did not demonstrate prejudice from the prosecutor's leading questions, he failed to meet his burden. Finally, Mr. Bond's third ground—that trial counsel were deficient for failing to move for merger of the aggravated kidnapping and aggravated murder conviction—fails because such a motion would have been futile.
¶ 3 In 2009, Mr. Bond and Mr. Rettig formed a plan to steal guns from the home of Mr. Bond's family friend, Kay Mortensen.2On November 16, 2009, the pair drove from Vernal to Mr. Mortensen's home in Payson carrying zip ties, latex gloves, and a .40 caliber handgun. When they arrived at the home, Mr. Mortensen answered the door and, recognizing Mr. Bond, invited both men into his home. According to Mr. Bond, Mr. Rettig then threatened Mr. Mortensen with the handgun, zip-tied his wrists, and demanded that Mr. Mortensen tell them where the guns were kept. Mr. Mortensen showed the men to a locked bunker in the backyard.
¶ 4 Mr. Bond and Mr. Rettig then led Mr. Mortensen back inside and up the stairs to the bathroom. Mr. Mortensen's ankles were zip-tied together and he was forced to kneel over the bathtub. One of the men went to the kitchen downstairs and retrieved a butcher knife, which was then used to slit Mr. Mortensen's throat and stab him through the back of the neck, killing him.
¶ 5 Almost immediately after the murder, Mr. Mortensen's son and daughter-in-law, Roger and Pamela Mortensen, arrived at the home. Mr. Bond and Mr. Rettig forced them into the living room and bound their wrists and ankles with zip ties. Mr. Bond threatened to “come after” the couple's family if they revealed the men's identity to the police. Mr. Bond and Mr. Rettig left with approximately twenty stolen guns. The couple freed themselves from the zip ties, called the police, and discovered Mr. Mortensen's body upstairs.
¶ 6 After leaving the house, Mr. Bond and Mr. Rettig returned to Vernal and parted ways. Mr. Bond kept all of the stolen guns. He stored some in his home, sold others, and buried the remaining weapons in a local park.
¶ 7 Approximately one year after the crime, Mr. Bond's ex-wife contacted the Utah County Sheriff's Office. She told police that Mr. Bond had confessed his role in the robbery and murder of Mr. Mortensen and had enlisted her help to bury some of the stolen guns. Police obtained a warrant to search Mr. Bond's home. While executing the warrant, police interviewed Mr. Bond and found several of the stolen guns. After the police confronted Mr. Bond with the guns, he admitted his involvement, implicated Mr. Rettig, and led police to a park where the remaining guns were buried. Police then arrested Mr. Bond and Mr. Rettig.
¶ 8 Mr. Bond gave several very different accounts of the robbery and murder before trial. He told his ex-wife that he held the handgun while Mr. Rettig murdered Mr. Mortensen with the knife. When police searched his home, Mr. Bond initially denied any involvement in the crime. But after police confronted him with the stolen guns found in his home, Mr. Bond related a story similar to the one he told his ex-wife—that Mr. Rettig had killed Mr. Mortensen. And in subsequent police interviews, Mr. Bond continued to assert that Mr. Rettig had stabbed and killed Mr. Mortensen. Then, while in prison, Mr. Bond passed notes to another inmate in which he claimed that he had killed Mr. Mortensen but that Mr. Rettig forced him to do so by threatening him with the gun.
¶ 9 The State charged Mr. Bond with one count of aggravated murder, three counts of aggravated kidnapping, one count of aggravated burglary, and one count of aggravated robbery. In order to avoid the possibility of the death penalty, Mr. Bond made an agreement with the State that he would be sentenced to life without the possibility of parole if the jury convicted him of aggravated murder.
¶ 10 Prior to Mr. Bond's trial, Mr. Rettig pled guilty to aggravated murder and aggravated kidnapping. He also agreed to testify against Mr. Bond in exchange for a favorable sentencing recommendation. However, when called to the stand in Mr. Bond's trial, Mr. Rettig refused to answer certain questions, citing a fear of federal firearms prosecution. The State granted Mr. Rettig immunity to testify, and the court permitted the prosecution to ask Mr. Rettig leading questions in front of the jury regarding the crimes. Mr. Rettig answered some questions but then repeatedly invoked his Fifth Amendment privilege against self-incrimination and refused to testify. Mr. Bond declined to cross-examine Mr. Rettig, insisting that questioning Mr. Rettig was not permissible given the invocation of privilege. Mr. Bond later moved for a mistrial based on the State's calling Mr. Rettig and forcing him to invoke the privilege before the jury. The trial court denied the motion.
¶ 11 The jury convicted Mr. Bond on all counts. He was sentenced to life without the possibility of parole for aggravated murder, and he received substantial sentences for the aggravated kidnapping, burglary, and robbery charges. Mr. Bond timely appealed. We have jurisdiction under Utah Code section 78A–3–102(3)(i).
¶ 12 Mr. Bond's three challenges to his convictions implicate different standards of review.
¶ 13 First, Mr. Bond challenges the trial court's denial of his motion for mistrial based on prosecutorial misconduct. We review the trial court's denial of Mr. Bond's motion for a mistrial for an abuse of discretion. See State v. Harris,2004 UT 103, ¶ 21, 104 P.3d 1250; cf. State v. Bisner,2001 UT 99, ¶ 31, 37 P.3d 1073(applying an abuse of discretion standard to evaluate a motion for a new trial based on prosecutorial misconduct).
¶ 14 Second, Mr. Bond claims a violation of his rights under the Confrontation Clause of the United States Constitution. Mr. Bond acknowledges this claim is unpreserved and thus raises it under the ineffective assistance of counsel and plain error doctrines. For ineffective assistance of counsel, Mr. Bond must satisfy the two-part Stricklandtest, showing “first, that his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment and, second, that counsel's performance prejudiced the defendant.” Archuleta v. Galetka,2011 UT 73, ¶ 38, 267 P.3d 232.
¶ 15 For plain error, Mr. Bond must demonstrate “(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant.” State v. Dunn,850 P.2d 1201, 1208 (Utah 1993). Mr. Bond and the State dispute how to apply the prejudice part of the plain error doctrine in his case. Mr. Bond contends that when prosecutorial misconduct amounts to a constitutional violation, the prejudice burden shifts to the State to demonstrate that any error was harmless beyond a reasonable doubt, even where a claim is unpreserved. The State argues that the burden does not shift for unpreserved challenges. We hold that for an unpreserved federal constitutional claim, the defendant bears the burden to demonstrate that any error was harmful. See infra¶¶ 36–46.
¶ 16 Third, Mr. Bond alleges that counsel rendered ineffective assistance for failing to move to merge his conviction for aggravated kidnapping with his conviction for aggravated murder. We review this claim under the Supreme Court's Stricklandtest, which has been described above. Supra¶ 14.
¶ 17 We address each of Mr. Bond's arguments in turn. We first consider his claim of prosecutorial misconduct. We then turn to his argument under the Confrontation Clause. Finally, we address his claim based on the merger doctrine. We conclude that each of Mr. Bond's arguments fails, and we accordingly affirm his convictions.
¶ 18 Prior to Mr. Bond's trial, Mr. Rettig pled guilty to aggravated kidnapping and aggravated murder for his participation in the crime. During trial, the prosecutor called Mr. Rettig as a witness against Mr. Bond. On the first day of questioning, Mr. Rettig answered some questions, admitting he had planned to meet up with Mr. Bond on the day of the murder. But when the prosecutor...
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