State v. Bond, 2015 UT 88

Background

In 2009 Martin Bond and codefendant Benjamin Rettig robbed Kay Mortensen’s home; Mortensen was murdered and ~20 guns stolen. Bond kept most of the guns; both were later arrested.
Rettig pled guilty to aggravated murder and aggravated kidnapping and agreed to testify against Bond, but at Bond’s trial Rettig invoked the Fifth Amendment on several substantive questions.
The State granted Rettig use immunity and the court allowed the prosecutor to treat him as a hostile witness and to ask leading questions; Rettig answered some but declined others. Bond declined to cross-examine and moved for mistrial based on prosecutorial misconduct; the motion was denied.
Bond was convicted of aggravated murder, multiple aggravated kidnappings, aggravated burglary, and aggravated robbery, and sentenced to life without parole for murder. He appealed on three main grounds: (1) prosecutorial misconduct in calling Rettig and forcing invocation of the Fifth before the jury; (2) Confrontation Clause violation from prosecutor’s leading questions to Rettig; (3) ineffective assistance for failing to move to merge aggravated kidnapping with aggravated murder.
The Utah Supreme Court affirmed: no prosecutorial misconduct; for unpreserved federal constitutional claims the defendant bears the burden to show prejudice under plain error; Bond did not show prejudice from the leading questions; merger motion would have been futile because the aggravated murder statute expressly prevents merger.

Issues

Issue	Bond's Argument	State's Argument	Held
1) Prosecutorial misconduct / motion for mistrial for calling Rettig despite his stated intent to invoke Fifth	Prosecutor improperly called Rettig to highlight his invocation before the jury and thus prejudiced Bond; mistrial warranted	Prosecutor had lawful basis: granted use immunity that compelled testimony and sought to elicit testimony (not to capitalize on silence); no misconduct; curative instruction sufficient	No abuse of discretion in denying mistrial — prosecutor had a valid basis to call Rettig and did not deliberately seek to exploit invocation of privilege
2) Confrontation Clause: prosecutor used leading questions to elicit Rettig’s statements when Rettig refused to testify further	Leading questions effectively put inadmissible testimonial matter before the jury and denied Bond his right to confront and cross-examine	Claim was unpreserved; even if error occurred Bond must demonstrate prejudice under plain error; the leading questions largely duplicated admitted evidence and did not undermine compulsion defense	Rejected: Bond failed to carry burden on plain error to show prejudice; no Confrontation Clause relief
3) Standard of review / burden on unpreserved federal constitutional claims	Bond argued Chapman harmlessness standard should shift burden to State even for unpreserved constitutional errors	State: unpreserved federal claims are reviewed under plain error and defendant bears burden to show prejudice	Court holds Johnson/Olano controlling: unpreserved federal constitutional claims are reviewed for plain error and defendant bears burden to show harm
4) Ineffective assistance for failure to move to merge aggravated kidnapping into aggravated murder (double jeopardy/merger)	Counsel deficient for not moving to merge; convictions are duplicative because kidnapping is predicate to the aggravated murder	Aggravated murder statute was amended to state aggravating circumstances that are separate offenses do not merge; a motion would have been futile	Failed: counsel not ineffective because a merger motion would have been futile under Utah Code § 76-5-202(5) as interpreted by the court

Key Cases Cited

Namet v. United States, 373 U.S. 179 (1963) (calling a witness to force invocation of privilege may be misconduct if done merely to emphasize the claim of privilege)
Douglas v. Alabama, 380 U.S. 415 (1965) (use of leading questions to convey a non-testifying codefendant’s confession can violate the Confrontation Clause)
Chapman v. California, 386 U.S. 18 (1967) (federal constitutional error is harmless only if harmless beyond a reasonable doubt when properly preserved)
Johnson v. United States, 520 U.S. 461 (1997) (unpreserved constitutional claims are reviewed for plain error; defendant bears burden to show prejudice)
Olano, United States v., 507 U.S. 725 (1993) (rule 52(b) plain-error framework places burden of persuasion on defendant for prejudice)
Strickland v. Washington, 466 U.S. 668 (1984) (two-part test for ineffective assistance of counsel: deficient performance and prejudice)
Mattox v. United States, 156 U.S. 237 (1895) (historical statement of the confrontation right and value of face-to-face cross-examination)
Balsys v. United States, 524 U.S. 666 (1998) (Fifth Amendment privilege requires immunity as broad as the privilege across jurisdictions)
Murphy v. Waterfront Comm’n, 378 U.S. 52 (1964) (state-granted immunity can bar federal use of compelled testimony)
Tillman v. State, 750 P.2d 546 (Utah 1987) (example of Utah applying Chapman language in an unpreserved-constitutional-error context)