State v. Maestas

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20090473‐CA
)
v. ) FILED
) (February 24, 2012)
Daniel Maestas, )
) 2012 UT App 53
Defendant and Appellant. )

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Third District, Salt Lake Department, 081902497
The Honorable Vernice Trease

Attorneys: Lori J. Seppi, Salt Lake City, for Appellant
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee

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Before Judges Orme, Davis, and Roth.

ORME, Judge:

¶1 Defendant appeals from his convictions for automobile homicide, a second
degree felony, see Utah Code Ann. § 76‐5‐207(3) (Supp. 2011); reckless driving, a class B
misdemeanor, see id. § 41‐6a‐528 (2010); and possessing an open container in a motor
vehicle, a class C misdemeanor, see id. § 41‐6a‐526(3).1 Defendant claims that the trial
court erred in denying his motion to suppress; that he received ineffective assistance of

1. Defendant was charged under prior versions of these statutes. Because there is no
relevant difference between those versions and the current versions, we cite to the latter
for the reader’s convenience.
counsel; and that the cumulative errors in the proceedings should undermine our
confidence that he received a fair trial. We are not persuaded and affirm.

BACKGROUND

¶2 At about 10:30 p.m. on February 21, 2008, Defendant and four friends met at a
private club in Murray to celebrate a birthday. After drinking alcoholic beverages and
otherwise enjoying their evening, the group left the club around 1:30 a.m. on February
22. Defendant and his friend, George, got into Defendant’s Cadillac, while Defendant’s
other friends got into a rented Chevrolet. Video evidence showed that Defendant’s
friend, Alex, got into the driver seat of the Chevrolet, but there is no video evidence of
who was driving the Cadillac.

¶3 After traveling down State Street in Murray, both the Cadillac and Chevrolet
turned onto 5300 South. Heading west, the cars approached 4000 West in Kearns at
speeds approaching 100 miles per hour. The cars then turned north on 4000 West and
raced toward 4700 South. Defendant’s Cadillac began to slide sideways after going
over a canal crossing near 4750 South. Just past the intersection at 4700 South, the
Cadillac’s front right tire hit a curb, spinning the car counterclockwise. As the car spun,
it hit two newspaper boxes, a stop sign, cement parking barriers, and two U‐Haul
moving trucks parked near a store. The car continued to spin, and the front passenger‐
side door struck the cement base of a light pole. The car ultimately came to rest on the
west side of the road, facing north. All significant damage from the accident occurred
on the passenger side of the vehicle; the driver side showed no damage from any
external impact.

¶4 Neither Defendant nor George were wearing seatbelts. And not surprisingly,
both were ejected from the Cadillac. Defendant was knocked unconscious as he landed
on the pavement and sustained a minor cut to his head. Otherwise, he had no sign of
external injury. George, however, died from injuries he sustained in the accident. So
violent was the crash that blood and tissue from George’s face were found on the
passenger side of the car, the car’s roof, and the light pole. Blood was also found on the
passenger‐side, but not the driver‐side, air bag.

¶5 Emergency medical personnel arrived at the accident scene at 1:55 a.m. By then
Defendant had regained consciousness. Upon examination, Defendant had normal vital
signs, did not show any sign of being seriously injured, and did not indicate that he was

20090473‐CA 2
in pain. Moreover, Defendant appeared alert and oriented, with a Glasgow coma score
of 13‐15.2 When asked by paramedics about what had happened, Defendant admitted
that he had been at a party and had been drinking. Defendant also told a paramedic
that he had been driving the Cadillac. Although Defendant showed no signs of serious
injury, paramedics fitted Defendant with a neck brace and placed him on a back board.
He was then taken by helicopter to the trauma unit at the University of Utah Hospital.
At the hospital, tests revealed that Defendant had a broken vertebra in his neck but no
other serious injury. Defendant was subsequently given pain medication, but his
Glasgow coma score remained at around 15.

¶6 While en route to the accident scene, Officer Jay Horner was redirected to the
hospital to talk with Defendant. Horner arrived at 3:03 a.m. and went to the emergency
room. Before talking with Defendant, Horner spoke with officers who had been at the
accident scene. The officers told Horner that they believed Defendant had been driving
the Cadillac and was possibly intoxicated at the time of the accident. Officer Horner
was told “to speak with [Defendant] as a pre‐arrest type conversation just to get his side
of the story.”

¶7 Officer Horner, in uniform and wearing his fully‐equipped duty belt,
approached Defendant while he was in one of the large individual rooms surrounding
the nurses’ station. In the room, Defendant was not accompanied by a security guard,
was not strapped to his bed, and was not otherwise physically restrained. Defendant
was, however, wearing a neck brace, connected to a catheter, and tethered to an IV.
Although family and friends were not allowed in the room, medical personnel came
and went freely as Defendant spoke with Horner. Officer Horner did not ask medical
personnel what drugs Defendant had been given prior to interviewing him.3

¶8 After introducing himself, Officer Horner asked Defendant what had happened
in the accident. Horner made it clear to Defendant that he was not under arrest and that
it was Defendant’s option whether to speak with him. Horner did not accuse
Defendant of driving the Cadillac, nor did he tell Defendant that George had died.

2. A Glasgow coma score measures the level of a patient’s confusion. A score of 15
indicates no confusion.

3. Defendant had been given Fentanyl, a pain medication, prior to Officer Horner’s
interview with Defendant. Defendant was later given Zofran, an anti‐nausea drug;
morphine, a pain medication; and Ativan, used to relieve anxiety.

20090473‐CA 3
During this interview, Horner “asked [Defendant] very minimal questions” about the
collision and recorded some of Defendant’s responses in a notebook. Defendant told
Horner that he could not remember where he and George had been going or any details
about the accident. Defendant told Officer Horner that he “only remembered driving
the Cadillac.”

¶9 While they spoke, Officer Horner noted that Defendant had slurred speech,
smelled of alcohol, and otherwise appeared intoxicated. Horner also noted that
Defendant’s “demeanor was very aggressive” and that he “used profanity quite often.”
After the interview, Horner “just kind of hung out” with Defendant in the emergency
room, although the two did not again interact significantly.

¶10 At about 5:00 a.m., Defendant was moved to a private room in another part of
the hospital. Officer Horner accompanied Defendant to his new room. Although
present in the room, Horner asked Defendant no further questions and could not even
recall Defendant saying “one word” to him while there. The door to Defendant’s room
remained open, and medical personnel came and went the entire time Horner was
present. Once out of the ER, Defendant was allowed visits by family members and
received several visitors. Horner overheard Defendant tell one visitor, “I’m sorry,
mom. Don’t be mad at me.” Later, after Defendant’s cousin told him George died in
the accident, Defendant said, “F**k, that’s homicide,” and while talking on the phone,
Defendant explained to a friend that he had “f**ked up.” Although he initially cried
upon hearing that George had died in the accident, within a few minutes, Defendant
turned “very jovial, flirtatious, joking and laughing.” Officer Horner left Defendant’s
room at approximately 7:30 a.m.

¶11 Police continued investigating. Based on the physical evidence, Detective Darren
Mower recreated the accident. From computer models, Mower concluded that George
was in the front passenger seat and was ejected through the opening in the car created
when the Cadillac collided with the light pole. The detective also concluded that
Defendant had been driving at the time of the collision and had been ejected through
the rear driver‐side door as the car spun.

¶12 On February 26, 2008, Detective Mower went to the hospital to interview
Defendant but learned that he had already been released. Mower then went to
Defendant’s home and spoke with him. The trial court found that Defendant refused to

20090473‐CA 4
talk with Detective Mower, but Mower testified at trial that he did in fact speak with
Defendant at that time.4

¶13 In April 2008, Defendant was arrested and charged with automobile homicide,
reckless driving, and an open container violation. Prior to trial, Defendant moved to
suppress statements he made at the hospital, contending both that he had been subject
to custodial interrogation without being given Miranda warnings and that his
statements were involuntary. The trial court denied Defendant’s motion.

¶14 During the preliminary hearing, attorney Manny Garcia entered an appearance
as counsel for Defendant. At some point during his representation of Defendant, Garcia
passed Alex in the court’s detention area. Garcia stopped Alex and asked, “Who was
driving the other car?” Alex answered simply: “George.” Shortly after this
conversation, Garcia withdrew, and new defense counsel entered an appearance.

¶15 Alex was also charged with various crimes growing out of the events that
culminated in the fatal accident. Alex and Defendant were set to be tried jointly. On
the morning of trial, defense counsel filed a motion to sever so she could call Alex to
testify in Defendant’s case. Alex, however, announced through counsel that he would
invoke the Fifth Amendment. Defense counsel then sought to call Garcia to testify as to
Alex’s statement to Garcia, claiming it should be admitted under rule 804 of the Utah
Rules of Evidence because Alex was unavailable to testify, having invoked his Fifth
Amendment right. See Utah R. Evid. 804. The State argued that although Alex was
unavailable, rule 804 did not apply because Alex’s one word statement was not
“contrary to [Alex’s] pecuniary or proprietary interest.” See id. R. 804(b)(3). The trial
court agreed with the State and precluded Garcia from testifying as to Alex’s statement.
Following a jury trial, Defendant was convicted of all charges.

ISSUES AND STANDARDS OF REVIEW

¶16 Defendant first claims that the trial court erred in denying his motion to
suppress. “We review the trial court[’s] factual findings underlying the denial of a
motion to suppress for clear error,” State v. Brandley, 972 P.2d 78, 81 (Utah Ct. App.
1998) (alteration in original) (citation and internal quotation marks omitted), while we

4. The State concedes that the trial court’s finding is clearly erroneous.

20090473‐CA 5
review a trial court’s ensuing conclusions of law for correctness, see State v. Moreno, 910
P.2d 1245, 1247 (Utah Ct. App.), cert. denied, 916 P.2d 909 (Utah 1996).

¶17 Defendant also argues that he received ineffective assistance of counsel. Where
an “ineffective assistance claim is first raised on direct appeal, this court can only
determine that the defendant was denied effective assistance of counsel if it can do so as
a matter of law.” State v. Snyder, 860 P.2d 351, 354 (Utah Ct. App. 1993).

¶18 Finally, Defendant argues that his convictions should be reversed because of
cumulative error. “The cumulative error doctrine allows us to consider all errors and
‘reverse only if the cumulative effect of the several errors undermines our confidence’
that [Defendant] received a fair trial.” State v. King, 2010 UT App 396, ¶ 17, 248 P.3d 984
(citation omitted).

ANALYSIS

I. Motion To Suppress

¶19 Defendant argues that the trial court erred in denying his motion to suppress.
First, Defendant argues that the trial court’s decision is flawed because “[s]everal of the
findings [of fact] in support of denying the motion were clearly erroneous.” Next,
Defendant contends that his statements at the hospital should have been suppressed
because they were not offered voluntarily. Finally, Defendant contends that the
statements were obtained through custodial interrogation without the benefit of
Miranda warnings. We address each issue in turn.

A. Findings of Fact

¶20 Defendant first contends that several of the trial court’s findings were clearly
erroneous. “A court’s findings are clearly erroneous if the findings are against the clear
weight of the evidence, or if [we are] convinced that a mistake has been made.” In re
T.M., 2006 UT App 435, ¶ 14, 147 P.3d 529 (citations and internal quotation marks
omitted).

¶21 With the exception of one inconsequential finding, we conclude that the trial
court’s findings are not clearly erroneous. First, Defendant contends that the trial
court’s findings underlying its conclusion that Defendant was not in custody are clearly

20090473‐CA 6
erroneous. Specifically, Defendant notes that the trial court found that Defendant “was
not restrained,” despite evidence that he was tethered to a catheter and an IV while in
the emergency room. This finding is not clearly erroneous when considered in context.
The trial court was no doubt referring to the fact that Defendant was not restrained by
Officer Horner even though his movement was restricted by tubes installed by hospital
staff for valid medical reasons. Likewise, Defendant claims the court erred in finding
that “there was no restriction on access” to Defendant. While it is true that Defendant
could not receive visitors in the emergency room, apparently in accordance with
hospital policy rather than any action taken by Horner, he received them freely once
transferred to his private room. The court’s finding, while somewhat generalized, thus
appears to be accurate. Accordingly, we see no error in the findings underlying the
court’s conclusion that Defendant was not restrained.

¶22 Next, Defendant labels as erroneous the court’s finding that “Officer Horner
asked questions of [Defendant], and the answers were written down by Officer Horner
in his notebook.” Defendant contends that this finding is erroneous because Officer
Horner only wrote down select answers and did not make a verbatim record. Because
we do not take the finding to mean that Officer Horner’s notes were precise transcripts
of the interview, we see no error here. Likewise, Defendant claims that the court’s
finding that Defendant “admitted to driving the vehicle” is incomplete because
Defendant’s statement giving rise to that finding was not recorded verbatim. Whether a
finding is incomplete is not the same as it being clearly erroneous. And indeed,
incomplete though it may be, sufficient evidence supports the court’s finding that
Defendant admitted to Officer Horner that he, Defendant, had been driving the Cadillac
at the time of the accident. Thus, we reject these arguments.

¶23 Further, Defendant asserts that the court’s finding that he “was coherent and
gave reasonable answers” is erroneous because it failed to give sufficient weight to the
effects of trauma, alcohol, and medication on Defendant. We see ample evidence in
Officer Horner’s testimony that Defendant was indeed coherent and gave reasonable
responses to Officer Horner’s questions. This evidence is buttressed by Defendant’s
Glasgow coma scores. In any event, Defendant’s argument for this point consists
merely of his speculation about how trauma, alcohol, and medication might have
affected him. Thus, we will not disturb this finding.

¶24 Finally, Defendant challenges the court’s finding that Detective Mower did not
speak with Defendant when he went to Defendant’s home a few days after he was
released from the hospital. The State concedes that Defendant did in fact speak with

20090473‐CA 7
Detective Mower on that occasion. While this finding is inaccurate, it is also irrelevant.
Indeed, whether Defendant actually spoke with Mower days after the accident has no
bearing on whether Defendant’s statements in the hospital were voluntary or whether
Defendant was in custody while being interviewed in the emergency room. Thus,
despite this inaccuracy, the trial court’s other findings and basic analysis are not tainted
by it. See, e.g., State v. Bredehoft, 966 P.2d 285, 292 n.7 (Utah Ct. App. 1998) (explaining
that although a finding may have been clearly erroneous, it was not important to the
disposition of the case because it was irrelevant to the court’s analysis of the issue), cert.
denied, 982 P.2d 88 (Utah 1999). Thus, with one inconsequential exception, the trial
court’s findings are not clearly erroneous, and we take them as our starting point in
considering Defendant’s legal arguments.

B. Voluntariness

¶25 Defendant contends that his statements either made to or overheard by Officer
Horner at the hospital were involuntary and thus in violation of his rights under the
Fifth Amendment and the Due Process Clause of the Fourteenth Amendment. We
conclude that Defendant’s statements were not constitutionally involuntary.

¶26 The Fifth Amendment to the United States Constitution “protects individuals
from being compelled to give evidence against themselves.” State v. Rettenberger, 1999
UT 80, ¶ 11, 984 P.2d 1009 (citations and internal quotation marks omitted).
Additionally, under the Due Process Clause of the Fourteenth Amendment “‘certain
interrogation techniques, either in isolation or as applied to the unique characteristics of
a particular suspect, are so offensive to a civilized system of justice that they must be
condemned.’” Colorado v. Connelly, 479 U.S. 157, 163 (1986) (quoting Miller v. Fenton, 474
U.S. 104, 109 (1985)). When statements made by a defendant are “constitutionally
involuntary,” they are suppressed. See Rettenberger, 1999 UT 80, ¶ 18.

¶27 In assessing a defendant’s challenge, we “examine the totality of circumstances
to determine whether a confession ha[s] been made freely, voluntarily and without
compulsion or inducement of any sort.” Id. ¶ 14 (citations and internal quotation marks
omitted). “[T]he totality of circumstances [includes] both the characteristics of the
accused and the details of the interrogation.” Id. (alterations in original) (citation and
internal quotation marks omitted). Our Supreme Court has recognized several
objective factors, none of which alone is dispositive, as relevant to the “totality of
circumstances test,” including “the duration of the interrogation, the persistence of the
officers, police trickery, absence of family and counsel, and threats and promises made

20090473‐CA 8
to the defendant by the officers.” Id. Additionally, the Court has identified personal
factors to be considered, including “the defendant’s mental health, mental deficiency,
emotional instability, education, age, and familiarity with the judicial system.” Id. ¶ 15.

¶28 We note that although a defendant’s personal characteristics are relevant to our
analysis, “a defendant’s mental state alone” is insufficient to “render a confession
constitutionally involuntary.” Id. ¶ 18 (emphasis added). See also Connelly, 479 U.S. at
165 (“[M]ere examination of the confessant’s state of mind can never conclude the due
process inquiry.”). Indeed, “coercive police activity is a necessary predicate to the
finding that a confession is not ‘voluntary.’” Connelly, 479 U.S. at 167. See also id. at 165
(noting there must be a “link between coercive activity of the State, on the one hand,
and a resulting confession by a defendant on the other”). And while exploitation of a
defendant’s mental deficiency may constitute coercive police activity, see Rettenberger,
1999 UT 80, ¶ 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.”), before a statement
may be found to be constitutionally involuntary, the evidence must reveal that a police
officer used “some physical or psychological force or manipulation . . . designed to
induce the accused to talk when he otherwise would not have done so,” id. ¶ 25
(citations, internal quotation marks, and emphasis omitted).

¶29 Relying on and quoting from Rettenberger, Defendant contends that his “‘will,
already vulnerable due to’ intoxication, injury, pain, trauma, and medication, ‘was
overborne by the suggestive and coercive techniques used by [Officer Horner], which
exploited those very vulnerabilities.’” See id. ¶ 45. We turn to the factors identified by
our Supreme Court to determine whether there was a “causal relationship between the
[alleged] coercion and the subsequent” statements made by Defendant at the hospital.
State v. Mabe, 864 P.2d 890, 893 (Utah 1993).

1. Objective Factors

¶30 We first look at Officer Horner’s activity from an objective standpoint to
determine whether it was coercive. We analyze both Officer Horner’s questioning of
Defendant in the emergency room and his conduct in Defendant’s private room.

¶31 Officer Horner approached Defendant as medical personnel treated him in the
hospital emergency room. The interview between Defendant and Officer Horner lasted
approximately fifteen minutes—a marked difference from the prolonged interrogation

20090473‐CA 9
in Rettenberger, which involved one to two‐and‐a‐half hours of questioning over the
course of two days. See 1999 UT 80, ¶ 33 . Moreover, Officer Horner was not persistent
during the interview. Indeed, it appears that Horner “asked [Defendant] very minimal
questions” and merely attempted to “get [Defendant’s] side of the story.” We have no
indication that Officer Horner raised his voice, repeatedly asked Defendant the same
questions, or badgered Defendant in any way. Thus, we see nothing in the duration or
manner of questioning during the initial interview to suggest coercion.

¶32 Further, we see no evidence that Officer Horner used trickery, deception, or
threats to elicit a response from Defendant. Defendant contends that Officer Horner’s
questioning was deceptive because he failed to inform Defendant about the seriousness
of the accident. Specifically, Defendant contends that had Horner informed him that
the police believed that he was the driver of the Cadillac and that his friend George had
died in the accident, it might have helped “sober” him. We see no indication that
Officer Horner’s failure to inform Defendant that he was the suspected driver and that
George had died as a result of the crash was an attempt by Horner to misrepresent the
situation Defendant faced or to somehow subtly induce him into revealing
incriminating information. In any event, Defendant has cited no authority indicating
that an officer’s failure to bring a suspect up to speed on all the underlying facts and
circumstances, where that failure does not rise to the level of misrepresentation,
constitutes “police trickery” sufficient to render a defendant’s statements involuntary.5

¶33 We recognize that while Defendant was in the emergency room area his family
and friends were not allowed access to him. Defendant was also connected to medical
equipment and was expected to remain immobile in the room while recuperating.
Defendant’s isolation from family and friends and his decreased mobility are certainly
relevant when assessing the voluntariness of his statements. See Rettenberger, 1999 UT
80, ¶¶ 14, 33. Nevertheless, we are not convinced in this case that Defendant’s isolation

5. Defendant also faults Officer Horner for failing to record the interview verbatim and
denying him “the opportunity to write a confession” or to see Officer Horner’s notes
“so that [Defendant] could review and sign them.” We do not see how Horner’s failure
to record the interview or give Defendant an opportunity to write a confession
constituted force or manipulation “designed to induce [Defendant] to talk when he
otherwise would not have done so.” See State v. Rettenberger, 1999 UT 80, ¶ 25, 984 P.2d
1009. Indeed, any imprecision by Officer Horner in recording the interview touches on
the evidentiary value of Horner’s testimony at trial, not the voluntariness of
Defendant’s statement. See Colorado v. Connelly, 479 U.S. 157, 159 (1986).

20090473‐CA 10
and decreased mobility establish that he was coerced into making involuntary
statements. Officer Horner did not cause Defendant to be isolated from his friends and
family or to be connected to medical equipment. Hospital policy and medical
treatment, not police tactics, caused Defendant’s isolation and lack of mobility, and
Officer Horner had no control over those circumstances. Indeed, it may fairly be said
that Defendant was subject only to medical restraint, not police restraint. Thus, the
traditional concern associated with police isolation and restraint—specifically, that
police will condition a defendant’s freedom of movement upon his cooperation with the
investigation, see Haynes v. Washington, 373 U.S. 503, 514 (1963)—is simply not present
here. Whether or not he chose to speak with Officer Horner, Defendant would not have
become free to leave or move about as he saw fit. And in any event, Defendant, though
not permitted visitors while in the emergency room area, was not truly isolated. The
door to the large room in which he rested remained open throughout the interview, and
hospital personnel freely entered and exited as they deemed necessary. Accordingly,
although he may have been isolated and confined to some degree, these circumstances,
in context, are not an objective indication that Officer Horner coerced Defendant.

¶34 Of even less concern are Defendant’s statements made after the initial fifteen
minute interview, once Defendant had been transferred from the emergency room to
his private room. After the initial interview concluded, Officer Horner “just kind of
hung out” with Defendant. Although Officer Horner spent several hours with
Defendant in the hospital, there is no indication that Officer Horner used any threats,
trickery, or other coercive tactics at any point. Indeed, it appears that Officer Horner
merely sat in Defendant’s room and that the two did not communicate in any
meaningful way.6 We fail to see how Officer Horner’s mere presence in these two
rooms was objectively coercive. See, e.g., United States v. Zamoran‐Coronel, 231 F.3d 466,
469 (8th Cir. 2000) (“[T]he mere presence of some police officers in a confined space
does not necessarily exert coercion of a constitutionally‐defective nature.”).

¶35 Accordingly, we conclude that there is no objective indication that Officer
Horner engaged in coercive conduct designed to overcome Defendant’s free will.

6. There is no suggestion in the record that medical personnel asked Officer Horner to
leave out of concern his presence was having adverse effects on Defendant’s mental
state or ability to rest. And there is no suggestion Defendant asked him to leave—or
asked his nurse or treating physician to ask him to leave—because of the intrusion on
his privacy.

20090473‐CA 11
2. Personal Factors7

¶36 We recognize that although Officer Horner did not objectively engage in coercive
tactics, we must still examine whether Defendant’s “subjective characteristics, especially
as known to [Officer Horner], . . . made [Defendant] more susceptible to manipulation,”
Rettenberger, 1999 UT 80, ¶ 37 (emphasis added). Specifically, it may be that Officer
Horner’s tactics become coercive or suggestive when Defendant’s personal
characteristics are taken into account, see id., and indeed, this appears to be the main
thrust of Defendant’s argument on appeal. In line with Rettenberger, it is true that an
officer’s knowledge of subjective mental infirmities could make the officer’s actions
sufficiently coercive, if there is evidence that he has exploited them. See id. We take
these points in turn, considering first whether Officer Horner knew of Defendant’s
alleged limitations and, second, whether Officer Horner exploited them.

¶37 Defendant contends that Officer Horner knew that Defendant had been in a
serious accident, was intoxicated, suffered from memory loss, and became “highly
agitated” at the hospital. Additionally, Defendant also notes that Officer Horner
neglected to ask medical personnel about Defendant’s condition. Accordingly,
Defendant argues, by failing to postpone the interview until Defendant had recovered
from the accident, Officer Horner “exploit[ed Defendant’s] mental deficiencies.” We are
not convinced that Officer Horner knew of and exploited Defendant’s alleged
vulnerability, i.e., the effects of his having been in a traumatic accident, being
intoxicated, experiencing mood swings, and having taken medication.

7. The Utah Supreme Court has expressly rejected an application of Colorado v. Connelly,
479 U.S 157 (1986), that focuses entirely on an objective analysis of police conduct. See
Rettenberger, 1999 UT 80, ¶ 17, 984 P.2d 1009 (“[W]e believe that Connelly stands for the
limited proposition that a defendant’s mental condition is not in itself sufficient to make
a confession involuntary.”). Accordingly, our Supreme Court has recognized that a
defendant’s unique personal characteristics might make him more susceptible to
manipulative conduct. See id. ¶ 37. Nevertheless, we reemphasize that a defendant’s
mental state alone is never sufficient, without more, to support a conclusion that a
statement is involuntary. See Connelly, 479 U.S. at 165. Indeed, we note that “the term
‘involuntary’ should be construed to refer not to some property a defendant’s
confession may be said in itself to have or lack, but rather to a certain relation between
the confession and the method or conduct of law enforcement officials in procuring it.”
United States v. Newman, 889 F.2d 88, 95 n.3 (6th Cir. 1989) (emphasis omitted), cert.
denied, 495 U.S. 959 (1990).

20090473‐CA 12
¶38 To begin, it is not clear that Officer Horner knew that Defendant had a
compromised mental state, particularly in the emergency room during the
interrogation. We acknowledge that Horner knew that Defendant had been in a car
accident, showed signs of pain and agitation, may have been intoxicated, and had
received medical treatment. Defendant was at times angry and used profanity directed
toward hospital staff and Officer Horner. But Defendant’s anger in the emergency
room does not appear to be all that uncommon. Specifically, we note that pain
produces different reactions in people, including anger and agitation. Some individuals
use profanity with great frequency, and perhaps more so when in uncomfortable
situations such as the one in which Defendant found himself. Defendant’s use of
profanity is not necessarily uncommon, especially considering that he had been
drinking. It may even be that Defendant’s anger and profanity are actually indications
that he was not coerced by Officer Horner but was acting with unrestrained freedom.
Defendant’s anger and profanity, then, were not clear signals to Officer Horner that
Defendant had a diminished mental or emotional state that Horner could exploit during
the interview.

¶39 Further, we conclude that Horner’s knowledge of Defendant’s intoxication did
not put him on notice that Defendant was incapable of making a voluntary statement.
We note that “[s]imply because [a defendant] was under the influence of drugs [or
alcohol] does not automatically render his confession involuntary.” United States v.
Howard, 532 F.3d 755, 763 (8th Cir. 2008). While Defendant’s speech was slurred, there
is no sign that Defendant’s intoxication was so severe that he was unable to understand
and answer questions appropriately or otherwise communicate effectively. Indeed,
testimony revealed that Defendant was not “out of it”; rather, he was “very coherent”
and “gave [Officer Horner] reasonable answers.” Thus, Defendant’s intoxication did
not necessarily give Officer Horner knowledge of Defendant’s allegedly deficient
mental state.

¶40 Although Defendant had taken pain medication prior to the interview in the
emergency room, which medication he alleges could have caused confusion, dizziness,
drowsiness, and anxiety, Horner was not aware of this. We are not convinced that
Horner should have inquired about the medication Defendant had been given prior to
the interview, much less that the hospital would have provided that information had he

20090473‐CA 13
requested it.8 Defendant also contends that, in addition to failing to make a medication
inquiry, it was improper for Horner not to have inquired as to Defendant’s general
medical condition prior to asking him questions. A police officer is not routinely
required to inquire into a defendant’s medical condition prior to questioning him. See
generally United States v. Casal, 915 F.2d 1225, 1229 (8th Cir. 1990) (noting that police did
not act improperly in questioning an intoxicated and sleep‐deprived defendant because,
in part, the investigating officer was not aware that the defendant had recently used
methamphetamine and gone without sleep for five days), cert. denied, 499 U.S. 941
(1991). This is especially true of those injured in auto accidents, with which most police
officers will have extensive experience and a meaningful frame of reference, and thus
less need to seek guidance about the effects of trauma. In contrast, an officer may have
a duty to inquire about a defendant’s mental state if the defendant exhibits truly bizarre
behavior. But such was not the case here. Defendant gave Officer Horner “reasonable
answers” and his “statements were reasonable.” Thus, Horner had no notice that
Defendant’s mental state warranted special concern.

¶41 Indeed, taking into account all of the factors that Defendant alleges contributed
to his mental state, but discounting entirely his speculation about the effects of his
medication, intoxication, and stress, there is little indication that Officer Horner knew of
Defendant’s supposedly deficient mental condition. Officer Horner’s lack of
information weighs heavily against a finding that he somehow exploited or otherwise
took advantage of Defendant’s mental state during the interview. See State v.
Rettenberger, 1999 UT 80, ¶ 37, 934 P.2d 1009.

¶42 Next, even if Officer Horner knew of Defendant’s precise mental state, we do not
see any evidence that Horner’s objectively noncoercive interview techniques overcame
Defendant’s free will because of Defendant’s subjective state while in the emergency
room. In Rettenberger, the Utah Supreme Court held that a defendant had been
exploited by police coercion where he lacked experience with the judicial system, had
attention deficit disorder, and exhibited signs of depression, anxiety, and other mental
deficiencies. See id. ¶¶ 37, 45. Key to the Court’s conclusion that the defendant’s
interrogation was constitutionally impermissible was its determination that the
defendant’s mental deficiencies made him “more susceptible to stress and coercion than
the average person.” Id. ¶ 38 (internal quotation marks omitted). This susceptibility
manifested itself when the defendant seemingly took his cues from police officers and

8. Applicable patient privacy laws and hospital privacy regulations may well have
prevented hospital personnel from sharing this information with Officer Horner.

20090473‐CA 14
eventually “incorporated the officers’ suggestions into his confession.” Id. ¶¶ 39‐44.
Indeed, the Court concluded that “the officers had directly or indirectly given [the
defendant] virtually all the facts that he used in his confession.” Id. ¶ 44.

¶43 In sharp contrast to the defendant in Rettenberger, Defendant here does not seem
to have been made susceptible to Officer Horner’s questioning because of his mental
condition. Indeed, none of Defendant’s incriminating statements appear to have been
supplied or suggested to Defendant by Horner. The key piece of evidence—the identity
of the driver of the vehicle—was not mentioned, as noted above, by Officer Horner at
any point during the interview. Additionally, Defendant’s story did not change during
his hospital stay, and his statements were consistent with the accident‐scene evidence
suggesting that he was the driver of the Cadillac. Thus, unlike the defendant in
Rettenberger, we see no indication that Defendant’s mental condition caused him to be
more susceptible to Horner’s questioning.

¶44 Defendant also relies on Mincey v. Arizona, 437 U.S. 385, 399‐401 (1978), in
arguing that his confession was involuntary because of his allegedly vulnerable state at
the hospital. This case is easily distinguished from Mincey. In Mincey, the “barely
conscious” defendant “depressed almost to the point of coma,” who was “seriously and
painfully wounded . . . [and] on the edge of consciousness,” repeatedly informed the
investigating officer that he did not want to answer questions because he was unable to
think clearly. Id. at 398‐401. Despite the defendant’s “entreaties to be left alone,” the
officer “relentlessly” engaged the defendant in “virtually continuous questioning.” Id.
at 401. Accordingly, the Court found the statements were “not the product of [the
defendant’s] free and rational choice.” Id. at 401‐02 (citation and internal quotation
marks omitted).

¶45 Here, in contrast, Defendant does not appear to have been in as serious a
condition as the “barely conscious” defendant in Mincey. Moreover, we see no evidence
that Officer Horner ignored an indication from Defendant that he did not wish to talk or
that the officer engaged in “relentless” or “virtually continuous” questioning. Indeed, it
appears that Officer Horner “asked [Defendant] very minimal questions” and that
Defendant “was very coherent” and “gave [Horner] reasonable answers.” We see no
other indication that Defendant’s subjective characteristics made him “particularly
vulnerable,” “overly compliant,” or unusually sensitive to Horner’s questioning. See
Rettenberger, 1999 UT 80, ¶ 37. Thus, we are not convinced that Officer Horner’s
objectively reasonable interrogation can be considered exploitative even when
considered in light of Defendant’s personal characteristics and circumstances.

20090473‐CA 15
¶46 Finally, while Defendant did take more medication after the initial interview and
exhibited mood swings while in his private room, we note that Officer Horner was
apparently unaware of the combination of medications that Defendant had been given.
Nevertheless, although Officer Horner remained aware that Defendant was in pain and
had been involved in a traumatic accident in which his friend had died, there is no
indication that Horner exploited Defendant’s mental condition in the private room.
Specifically, Horner appears to have merely sat in the room while Defendant rested,
received visitors, made phone calls, and was attended by hospital staff. Officer Horner
testified that he did not say much, if anything at all, to Defendant after the fifteen‐
minute interview concluded and that he said nothing while in the private room.
Indeed, it appears Horner essentially fulfilled the role of the proverbial fly on the wall.
We cannot see how Officer Horner’s mere presence would have constituted exploitative
conduct causally linked to the incriminating statements Defendant made while in the
private room.

¶47 In sum, we conclude that Officer Horner did not engage in coercive conduct
from an objective standpoint. Moreover, we are not convinced that Horner knew or
should have known that Defendant had an allegedly deficient mental state. In any
event, we see nothing that suggests Horner exploited Defendant’s personal condition or
characteristics while at the hospital. Thus, we see no error in the trial court’s decision
not to suppress Defendant’s hospital statements as involuntary.

C. Custodial Interrogation

¶48 Defendant also contends that the trial court erred when it denied his motion to
suppress because he was not given Miranda warnings prior to being questioned by
Officer Horner in the emergency room. A person is entitled to Miranda warnings prior
to being subjected to custodial interrogation. See State v. Gallegos, 2009 UT 42, ¶ 25, 220
P.3d 136 (citing State v. Levin, 2006 UT 50, ¶¶ 33‐34, 144 P.3d 1096 ). “[C]ustodial
interrogation occurs where there is both (1) custody . . . and (2) interrogation.” Levin,
2006 UT 50, ¶ 34. Where an individual is subject to custodial interrogation and not
given Miranda warnings, any statement made by that individual is inadmissible at trial.
See State v. Ferry, 2007 UT App 128, ¶ 12, 163 P.3d 647. Here, the State concedes that
Defendant was subject to interrogation while in the emergency room and that he was

20090473‐CA 16
not given the Miranda warnings.9 Thus, whether Defendant’s hospital statements
should have been suppressed turns on whether he was in “custody.”

¶49 “A person is in custody when ‘[the person’s] freedom of action is curtailed to a
degree associated with formal arrest.’” Levin, 2006 UT 50, ¶ 35 (quoting Berkemer v.
McCarty, 468 U.S. 420, 440 (1984)) (alteration in original). Whether this standard is met
“depends on the objective circumstances of the interrogation, not on the subjective
views harbored by either the interrogating officers or the person being questioned.”
Stansbury v. California, 511 U.S. 318, 323 (1994) (per curiam).

¶50 The Utah Supreme Court has identified four factors that aid in determining
whether a person is in custody for Miranda purposes: “(1) the site of interrogation; (2)
whether the investigation focused on the accused; (3) whether the objective indicia of
arrest were present; and (4) the length and form of interrogation.” Salt Lake City v.
Carner, 664 P.2d 1168, 1171 (Utah 1983). No one factor is dispositive, and we look to the
totality of the circumstances in making our determination. See State v. Worthington, 970
P.2d 714, 716 (Utah Ct. App. 1998).

¶51 We conclude that Defendant was not in custody when he spoke with Officer
Horner in the emergency room. As to the site and circumstances of the interrogation,
we note that Defendant was in a large patient room in the hospital’s emergency room
area. He was hooked to a catheter and an IV and was expected to remain in his hospital
bed while he recuperated. Yet Defendant was not otherwise confined to his hospital
bed, and he “had full movement in his arms and legs,” despite his injured and braced
neck. It is also true that Defendant was not able to receive visitors in the emergency
room. However, the door to his room remained unlocked and open, and medical
personnel continued to treat Defendant while he spoke with Officer Horner. In any
event, as we mentioned in the context of analyzing police coercion, while Defendant
may have been confined and isolated to a degree, this was the result of medical
treatment rather than Officer Horner’s interrogation. Defendant was, in a sense, in
medical custody, not police custody. It has been noted that “the restrictions on [a
person’s] freedom arising from police interrogation and those incident to his
background circumstances” must be carefully separated. United States v. Jamison, 509

9. There was no interrogation after the initial fifteen‐minute interview. Indeed, it
appears that after Officer Horner questioned Defendant in the emergency room, the two
did not again interact significantly. Thus, our focus is on the interrogation that took
place when Horner interviewed Defendant in the emergency room.

20090473‐CA 17
F.3d 623, 629 (4th Cir. 2007). Accordingly, we do not assume an individual is in custody
for Miranda purposes when his confinement and isolation are the result of medical
treatment and not police interrogation. See, e.g., id. (concluding that restraint because of
injury and medical exigencies at a hospital did not factor into the court’s custody
analysis). Thus, we do not factor Defendant’s confinement and isolation into our
analysis because they were the result of medical treatment and not Officer Horner’s
actions.10

¶52 The second factor, the focus of the investigation, also does not weigh in favor of
finding that Defendant was in custody. Defendant contends that he was the sole focus
of the investigation because he was the only surviving passenger and the only person
transported to the emergency room after the accident. Nevertheless, although Officer
Horner was aware that Defendant was suspected of being the driver of the Cadillac, he
did not indicate to Defendant that he was under suspicion for any crime. And, we note,
“an officer’s unarticulated subjective focus on a particular suspect is not relevant to the
determination of whether that suspect is in custody for Miranda purposes.” State v.
Mirquet, 914 P.2d 1144, 1148 (Utah 1996).

¶53 Further, Defendant contends that Officer Horner delayed arresting Defendant at
the hospital to avoid having to give Defendant Miranda warnings in hopes that he
would confess. See United States v. Martin, 781 F.2d 671, 673 (9th Cir. 1986) (stating that
under some circumstances police presence and close monitoring of a defendant at the
hospital could indicate that the defendant was in custody). We note that despite
Defendant’s statements to Officer Horner confirming that he was driving the Cadillac at
the time of the accident, Defendant was not arrested for over a month after he left the
hospital. It appears that the police investigation, including accident reconstruction and
computer modeling, continued during this time. Thus, we are not convinced that the

10. Defendant also argues that the fact the questioning took place “in the middle of the
night” points to his being the subject of custodial interrogation. In support of this
position he cites to State v. Gallegos, 2009 UT 42, 220 P.3d 136, in which the Court
observed that a public clubhouse took “on an isolated character” when questioning took
place “at four o’clock in the morning.” Id. ¶ 27. We note, however, that hospitals are
places of constant activity regardless of the time of day. Thus, unlike a public
clubhouse, which likely has few, if any, patrons at four o’clock in the morning, a
hospital’s emergency room during the same period of time would not take on the same
kind of isolated character, as was the case here given that medical personnel were freely
entering and exiting Defendant’s room during the interview.

20090473‐CA 18
evidence suggests that the officers “deliberately delayed making a formal arrest” to
avoid Miranda. See id. On the contrary, it appears that the delay in arresting Defendant
was attributable to a commendable interest on the part of the police in completing their
investigation and making sure that other evidence pointed to Defendant. Consequently,
we conclude there was no undue focus on Defendant by Officer Horner so as to suggest
that Defendant was in custody.

¶54 The third factor, the objective indicia of arrest, also weighs against a finding that
Defendant was in custody. Specifically, Officer Horner was the only officer present in
the emergency room. There is no indication that the location in which Officer Horner
positioned himself a “couple of feet” from Defendant’s bed was in any way threatening
or menacing. Moreover, while Defendant was confined to his hospital bed because of
the catheter and IV, this was not the result of Officer Horner’s efforts to hold him, but
the result of medical treatment. See State v. Gallegos, 2009 UT 42, ¶ 29, 220 P.3d 136
(focusing on police wrongdoing in determining whether the defendant was in custody).
Additionally, Officer Horner did not close the door to the hospital room during the
interview, and he repeatedly informed Defendant that he was not under arrest.11
Finally, although Horner was dressed in uniform, including his duty belt with firearm
and handcuffs attached, he did not brandish his gun when speaking with Defendant or
suggest he would make use of his handcuffs. The mere fact that a police officer has a
duty belt with a “visible firearm” and handcuffs attached is not a sufficient indicium of
arrest to demonstrate that the Defendant was in custody.12 Thus, we are not convinced
that any objective indicia of arrest were present.13

11. Defendant contends that although Officer Horner told him he was not under arrest,
his injury and the drugs “left [Defendant] unable to understand or remember this fact.”
We again note that custody is viewed, almost without exception, from an objective
standpoint. See Stansbury v. California, 511 U.S. 318, 323 (1994) (per curiam)
(emphasizing the objective nature of the Miranda inquiry).

12. Indeed, because of how unremarkable it is for police officers to wear duty belts with
firearms and handcuffs attached, we do not consider an officer’s merely wearing such a
belt during a police interview to be an indicium of arrest at all.

13. Defendant also includes as an indicium of arrest the fact that Officer Horner “kept
[Defendant] under constant supervision.” We note, however, that this supervision
occurred solely after the fifteen‐minute interview had ceased. Thus, this “supervision,”
(continued...)

20090473‐CA 19
¶55 Finally, the length and form of the questioning weigh against a finding that
Defendant was in custody. The questioning “lasted approximately 15 minutes”—a brief
period of time as police interrogation goes. During those fifteen minutes, Officer
Horner never told Defendant that he was required to speak with him. More
importantly, after the questioning began, Officer Horner “asked [Defendant] very
minimal questions.” And those questions were merely “investigatory, not accusatory”
in nature. Consequently, we see nothing in the facts indicating that the form of
Horner’s questions was designed to compel Defendant to confess, as he contends.

¶56 Accordingly, we are not convinced that any of the factors identified by our
Supreme Court in Carner weigh in favor of concluding that Defendant was in custody
when questioned by Officer Horner in the emergency room. Thus, the trial court did
not err in refusing to suppress Horner’s testimony despite Defendant not receiving
Miranda warnings.

II. Ineffective Assistance of Counsel

¶57 Defendant also contends that he received ineffective assistance of counsel in the
proceedings below because, he alleges, his trial counsel (1) failed to investigate or
present evidence on the effects of his injury, trauma, and medication on his mental state
while at the hospital and (2) failed to properly handle Alex’s statement that George had
been driving the Cadillac. To establish ineffective assistance of counsel, a defendant
must show that (1) “counsel’s performance was deficient in that it ‘fell below an
objective standard of reasonableness’” and (2) “counsel’s performance was prejudicial
in that ‘there is a reasonable probability that but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’” Menzies v. Galetka, 2006 UT 81,
¶ 87, 150 P.3d 480 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).

A. Defendant’s Injury, Trauma, and Medication

¶58 Defendant complains that his counsel failed to investigate or present evidence
regarding the effects of the medication Defendant was given at the hospital. We are not
convinced, even assuming that Defendant’s counsel’s performance fell below an

13. (...continued)
even if properly considered an indicium of arrest, did not occur while Defendant was
being interrogated, and therefore is not relevant to our Miranda analysis, which is
focused on whether Defendant was the subject of custodial interrogation.

20090473‐CA 20
objective standard of reasonableness, that there is a reasonable probability that the
suppression hearing would have turned out differently.

¶59 We acknowledge that there is no evidence that Defendant’s counsel sought to
discover the potential effects of the injury, trauma, and medicine on Defendant while he
recovered in the hospital. We do not doubt that these factors could have caused
confusion, mood swings, or other mental ramifications. Nevertheless, even if
Defendant’s counsel had investigated the effects of the injury, trauma, and medication
and had shown that Defendant in fact had a diminished mental state—no small
undertaking, to be sure—this would not have established that Officer Horner knew of
Defendant’s weakened mental state or proved that Horner exploited that vulnerable
condition. And as we have explained above, demonstrating police coercion is a
“necessary predicate” to prevail on an involuntariness claim. See supra ¶ 28.
Accordingly, even with evidence regarding the potential effects of the trauma, injury,
and medication, Defendant would not have succeeded on his involuntariness claim.
Likewise, because whether a defendant was in custody is an objective determination, see
Stansbury v. California, 511 U.S. 318, 323 (1994) (per curiam), evidence regarding
Defendant’s subjective state would have been irrelevant to the court’s Miranda analysis.
Thus, even assuming Defendant’s counsel should have investigated the effects of
Defendant’s injury, trauma, and medication, the result of the suppression hearing
would not have been different.

B. Alex’s Statement

¶60 Defendant next argues that his counsel rendered deficient performance by failing
to call his codefendant Alex to the witness stand, thereby making Alex invoke his Fifth
Amendment privilege against self‐incrimination. Had his counsel called Alex to testify
and forced him to invoke his privilege, Defendant contends, his counsel would then
have been able to introduce Alex’s statement, in which he allegedly identified George as
the driver of the Cadillac, either as a prior inconsistent statement, see Utah R. Evid.
801(d)(1)(A), or as a statement against interest, see id. R. 804(b)(3).

¶61 We are not convinced that Defendant could have called Alex to the stand and
required him to invoke his Fifth Amendment privilege against self‐incrimination. It is
fundamental that in a criminal trial, a defendant may not be “compelled . . . to be a
witness against himself.” U.S. Const. amend. V. See also State v. Kazda, 540 P.2d 949, 951
(Utah 1975) (“It is not to be doubted that the right of a defendant not to testify in a
criminal trial is a fundamental right protected by both the federal and the Utah
Constitutions.”). The protection of the Fifth Amendment has been read expansively,

20090473‐CA 21
and “[t]he privilege entitles the criminal defendant . . . to even avoid appearing as a
witness” in his own trial. Wayne R. LaFave et al., Criminal Procedure § 24.5(a) (3d ed.
2007). It is likewise fundamental that a defendant’s invocation of his privilege against
self‐incrimination “should in no way prejudice him in the eyes of the court or jury.”
Kazda, 540 P.2d at 951. See also State v. Travis, 541 P.2d 797, 799 (Utah 1975).

¶62 Additionally, courts have made clear that one defendant may not compel a
codefendant to testify in a joint trial. See United States v. Hernandez‐Rodriguez, 443 F.3d
138, 144 (1st Cir. 2006); United States v. Mayfield, 189 F.3d 895, 901 (9th Cir. 1999).
Indeed, out of concern that a defendant’s invocation of the Fifth Amendment may
improperly prejudice his standing before the court or jury, a defendant is even
prohibited from calling a codefendant to the stand to force him to invoke his privilege
against self‐incrimination. See United States v. Carella, 411 F.2d 729, 731 (2d Cir.), cert.
denied sub nom. Erhart v. United States, 396 U.S. 860 (1969). This is true even if the
testimony of the codefendant would help the other defendant’s cause. See Robert O.
Dawson, Joint Trials of Defendants in Criminal Cases: An Analysis of Efficiencies and
Prejudices, 77 Mich. L. Rev. 1379, 1440‐41 (1979).

¶63 Despite the principles outlined above, Defendant points to State v. White, 671
P.2d 191 (Utah 1983), as justification for his claim that his counsel could and should
have called Alex to the witness stand. In White, a defendant accused of committing
armed robbery attempted to introduce statements of a jail inmate that the defendant
claimed would show that the inmate had actually committed the robbery. See id. at 192‐
93. The defendant did not call the inmate to the stand; instead, counsel for the
defendant explained that she had talked with the inmate’s attorney who indicated that
if the inmate was called to testify, he would invoke his Fifth Amendment privilege
against self‐incrimination. See id. Because the inmate would invoke the privilege, the
defendant argued, the inmate was unavailable and, thus, the defendant could introduce
the inmate’s prior statements under the statement against interest exception to the
hearsay rule. See id. at 193. The Court rejected the defendant’s proffer that the inmate
was unavailable and held that the inmate “could not have been exempted from
testifying on the ground of privilege until he had personally asserted his Fifth
Amendment privilege under oath in response to a question.” Id. The Court also noted
that “‘[a]n attorney for a witness cannot claim a privilege against self‐incrimination; he
can only advise the witness. In order for the claim to be honored by the court, it must

20090473‐CA 22
be made by the witness.’” Id. (alteration in original) (quoting State v. Anderson, 27 Utah
2d 276, 495 P.2d 804, 806 (Utah 1972)).

20090473‐CA 23
¶64 Based on White, Defendant argues that until Alex was placed on the stand and
directly claimed his privilege, he could not have invoked the protection of the Fifth
Amendment. We conclude, however, that the reasoning of White is not applicable here
because Alex is a codefendant in this case and not merely a witness. White and cases
that cite to it, see, e.g., State v. Smith, 706 P.2d 1052, 1058 (Utah 1985), hold that a
potential witness cannot be shown to be unavailable under rule 804 of the rules of
evidence, see Utah R. Evid. 804, unless the witness is brought before the court and
invokes his privilege not to testify in response to some question put to the witness. See
White, 671 P.2d at 193. This holding does not mean that a defendant in his own criminal
trial must be placed on the stand and forced to invoke his right against self‐
incrimination before the right applies. Indeed, we conclude that the protections
provided a witness claiming the privilege of the Fifth Amendment and a defendant in his
own criminal trial are very different. Specifically, as White recognizes, there is a danger
that invocation of the Fifth Amendment may lead the court or jury to draw negative
inferences. See id. See also Travis, 541 P.2d at 799. However, a witness, unlike a
defendant, need not fear the negative inferences a court or jury may draw from his
invocation of the privilege because the witness’s liberty is not in peril in a proceeding in
which he is merely called to testify.

¶65 Defendant also makes much of White’s language in which the court indicated
that a witness had to claim the privilege personally and could not do so through an
attorney. We note the unique facts of White, however. There, the defendant’s attorney
proffered that the inmate would not be available to testify. See White, 671 P.2d at 193.
The State objected to this showing of unavailability. See id. at 192. Thus, the Court held
that where a potential witness’s unavailability is not certain, a defense attorney’s proffer
that the witness will invoke the Fifth Amendment privilege is not sufficient. We
caution against reading this proposition from White too broadly. See Palmer v. State, 920
P.2d 112, 114 (Nev. 1996) (per curiam). While a witness may not be able to claim the
privilege indirectly through counsel, a defendant in his own criminal trial may
unequivocally claim the privilege through his attorney, and thus, we see no conflict
with White.

¶66 Here, all parties knew and stipulated to the fact that Alex invoked his right
against self‐incrimination. Thus, the court, prosecutor, and Defendant were all
prohibited from calling Alex as a witness, regardless of the purpose for which he was
called. Accordingly, because Defendant has not convinced us that his counsel could
have called Alex to take the stand to force him to invoke the Fifth Amendment,

20090473‐CA 24
Defendant’s trial counsel did not perform deficiently by failing to do so.14 Thus, we
conclude that Defendant has not met his burden of establishing that he received
ineffective assistance of counsel at trial. See Menzies v. Galetka, 2006 UT 81, ¶ 87, 150
P.3d 480.

III. Cumulative Error

¶67 Finally, Defendant contends that the cumulative effect of errors made at trial
should undermine our confidence that he received a fair trial. See State v. Kohl, 2000 UT
35, ¶ 25, 999 P.2d 7. Inasmuch as we have concluded that no errors occurred in the
proceedings in issue, with the exception of the trial court’s entry of an inaccurate but
inconsequential finding, Defendant’s cumulative error argument must fail.

14. Indeed, because Defendant could not have forced Alex to take the stand, he would
not have been able to introduce Alex’s statement under rule 801(d)(1)(A) because that
rule requires that the declarant “testif[y] . . . and [be] subject to cross‐examination
concerning the statement,” Utah R. Evid. 801(d)(1)(A), which Defendant could not be
forced to do in his own trial.
We also note the curious form of Defendant’s argument with respect to his claim
that Alex’s prior statements could have come in under rule 804(b)(3). Rule 804 creates
exceptions to the traditional hearsay rule where the declarant is unavailable. See Utah
R. Evid. 804. Rule 804(b)(3) in particular provides that where a defendant is
unavailable, a statement against the declarant’s “pecuniary or proprietary” interest,
which is trustworthy, may be introduced into evidence. See id. R. 804(b)(3). Defendant
argues that if his counsel had placed Alex on the stand where he would invoke the Fifth
Amendment, he would have become unavailable under rule 804. We note, however,
that all parties, the State included, stipulated that Alex was unavailable as a witness
because he had invoked the Fifth Amendment right not to testify. The trial court
likewise concluded that Alex was unavailable. But the trial court ultimately prohibited
introduction of Alex’s prior statement simply because it was not a statement “against
interest” and lacked “trustworthiness.” Thus, as near as we can tell, the trial court’s
decision to exclude Alex’s statement had nothing to do with whether or not he was
“available.”

20090473‐CA 25
 CONCLUSION

¶68 We reject Defendant’s voluntariness claim because we see no evidence that
Officer Horner engaged in objectively coercive tactics or knew of and exploited
Defendant’s alleged mental limitations. Moreover, we conclude that Defendant was not
entitled to Miranda warnings prior to being questioned by Officer Horner because he
was not in custody. We also conclude that Defendant’s counsel did not render
ineffective assistance because even if his counsel had investigated the effect of the
trauma, alcohol, and medication, that evidence would not have demonstrated that
Officer Horner engaged in coercive conduct, as required to establish involuntariness.
Moreover, Defendant’s counsel did not perform deficiently in failing to call Defendant’s
codefendant Alex to the stand because the codefendant has a constitutional right not to
be called as a witness in his own criminal trial. Finally, because we see no error of
consequence, Defendant’s cumulative error claim fails.

¶69 Affirmed.

____________________________________
Gregory K. Orme, Judge

‐‐‐‐‐

¶70 WE CONCUR:

____________________________________
James Z. Davis, Judge

____________________________________
Stephen L. Roth, Judge

20090473‐CA 26