State v. Robertson

2018 UT App 91

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
THAD DOUGLAS ROBERTSON,
Appellant.

Opinion
No. 20150859-CA
Filed May 17, 2018

Fifth District Court, Cedar City Department
The Honorable G. Michael Westfall
No. 131500082

B. Kent Morgan, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.

MORTENSEN, Judge:

¶1 Seeking a reaction from his friend sitting nearby,
Defendant Thad Douglas Robertson pulled out a concealed
revolver and pointed it at his girlfriend’s head. Then he pulled
the trigger. The revolver fired. He later claimed that the gun,
which he had owned for nearly three decades, “startled” him by
going off. Defendant then turned the firearm on his friend and
shot him. Twice. Both the girlfriend and the friend died.
Appealing from his convictions for aggravated murder,
Defendant claims that the trial court and his defense counsel
made missteps relating to the jury voir dire process, that the
evidence was insufficient to support his convictions, and that he
was deprived of the effective assistance of counsel at trial. We
reject his claims and affirm his convictions.
 State v. Robertson

BACKGROUND

¶2 Defendant and his Girlfriend spent Valentine’s Day at her
house, where Defendant was living. The next morning, they
awoke and smoked methamphetamine before Defendant left for
a time. When he returned, Friend—whom Defendant had not
seen in six months—was at the house. Friend asked, “Can I
invite you in?,” which “upset [Defendant] greatly” because,
“[w]ell, wouldn’t it upset you if a guy showed up and invited
you into your own home?” So Defendant again left the house.

¶3 When he returned to the home the second time that day,
Defendant could hear Girlfriend and Friend talking in the living
room. He claimed that they got quiet as soon as he opened the
door, which further irritated Defendant. His response was to go
to his bedroom and retrieve his revolver, concealing it in the
waistband of his pants.

¶4 Returning to the living room, Defendant, assuming “there
was some sort of an affair going on,” asked Friend how long it
“had been going on.” According to Defendant, Girlfriend then
said, “Oh, no, [Friend]. He knows that we’re sleeping together.”
But Defendant said Girlfriend was “probably just being
sarcastic,” as she “was very sarcastic.” He nevertheless pulled
the gun out and pointed it at Girlfriend’s head, looking at Friend
to see his reaction. Then Defendant pulled the trigger, shooting
Girlfriend in the head.

¶5 Defendant later asserted that he believed the cylinder
under the hammer in the revolver was empty, so he was
“startled” when the gun went off.

¶6 After shooting Girlfriend, Defendant looked at Friend,
who had “started to come up out of his seat.” Defendant “turned
the gun on him, fearing that [Friend] was going to come after
[Defendant]” and shot him, causing Friend to stumble and fall.
When Friend “started to try and get up again,” Defendant shot

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him a second time, reasoning again, “I thought [Friend] was
going to come after me.”

¶7 According to Defendant, he then went to Girlfriend and
touched her head, covering his hand with blood. He originally
thought she was dead, but upon moving closer, he noticed that
she was still breathing. Defendant later claimed that he kissed
Girlfriend on the forehead before asking, “[W]hat have I done?”

¶8 Defendant claimed he then called his daughter on the
phone, telling her he was calling to say goodbye and to ask her
to manage his finances because he was going to commit suicide.
He explained that Girlfriend had been shot and mentioned that
“somebody else possibly could have been shot.” Defendant
ended the call by saying that Girlfriend was making noise so he
had to go. Daughter testified that throughout the phone call,
Defendant was calm. Aside from the content of the conversation,
it seemed “like a normal phone call.”

¶9 Daughter called the police to report that her father was
suicidal. Police responded to Girlfriend’s house, where they saw
Defendant pacing in front of the house, smoking a cigarette. He
initially told police that when he entered the house, he found
that two people had been shot. He claimed that he did not know
the man who had been shot but explained that his girlfriend had
been shot and had a handgun; he gave police the impression that
Girlfriend was the shooter and was still armed.

¶10 The police wanted to provide aid to the injured parties
but were faced with Defendant’s claim that the shooter was still
inside the house with a gun. They thus determined that it was a
“high risk” situation and directed medical personnel to delay
entering the home. A SWAT team was called in.

¶11 Meanwhile, police questioned Defendant, trying to better
understand the situation inside the house. Defendant “was a bit
hesitant” to provide information and was “elusive” in his

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answers. When police asked Defendant why he had not called
911 when he first discovered Girlfriend’s injuries, he claimed,
“She raised up the gun and I thought she might shoot me, so I
went back [into] the bedroom.” He further claimed that
Girlfriend was suicidal and had earlier taken a large quantity of
pills.

¶12 Police went on to question Defendant about his
conversation with Daughter, asking why he had told her that he
had shot two people. He said he did not remember saying that to
Daughter and, in fact, did not know why he would have said
that.

¶13 The SWAT team, followed by medical personnel,
eventually entered the house. They observed Girlfriend sitting
with her head against the couch, holding her hands by her face,
her eyes swollen shut. Her hands were “shaking uncontrollably”
and she kept repeating, “Let me die. Leave me alone. Let me die
alone.” Defendant’s revolver was in her lap. Girlfriend was
transported to the hospital, where she died four days later.
Friend was dead when medical personnel entered the house.

¶14 Subsequent police investigation uncovered that
Defendant had not called Daughter immediately after shooting
Girlfriend and Friend. Instead, he had left the scene, visited his
mother’s house, then called Daughter when he returned to
Girlfriend’s house. Defendant had left a handwritten note at his
mother’s house, giving his mother power of attorney and
directing the distribution of his belongings to his children.
Defendant eventually admitted to police that he wrote the note
after shooting Girlfriend and Friend.

¶15 The State charged Defendant with, among other charges,
aggravated murder for the deaths of Friend and Girlfriend. At
trial, a firearms expert testified that it is easy to tell which
cylinders in Defendant’s revolver are loaded because the rim of
the cartridge protrudes slightly out of and above the cylinder.

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 State v. Robertson

Defendant had owned the revolver used in the shootings for
twenty-eight years.

¶16 The case was tried to an eight-member jury. Voir dire was
conducted in two sessions: one in court and one in-chambers.
While Defendant was present during the first round of voir dire,
he elected not to be present during the latter part, which took
place in-chambers. Before the in-chambers voir dire began,
defense counsel noted on the record that Defendant agreed not
to be present, and the trial court advised Defendant that he had a
right to be present during jury selection. Defendant told the
court that he trusted his attorney, and the court found that
Defendant “knowingly and voluntarily waived his right to be
present at voir dire.”

¶17 The State did not seek the death penalty, having filed the
charges as noncapital first degree felonies. The jury convicted
Defendant as charged, finding him guilty of two counts of
aggravated murder, one count of possession of a controlled
substance in a drug-free zone, one count of possession of a
firearm by a restricted person, and one count of possession of
drug paraphernalia in a drug-free zone. The trial court sentenced
Defendant to two consecutive sentences of life without parole for
the aggravated murders and concurrent prison terms for the
other crimes. Defendant now appeals his convictions for
aggravated murder, seeking a new trial on those charges.

ISSUES AND STANDARDS OF REVIEW

¶18 We are asked to decide several issues on appeal. First,
Defendant argues that the trial court plainly erred by allowing
him to be tried by an eight-person jury. He further argues that
the aggravated murder statutory scheme is unconstitutional.
Next, Defendant argues that the trial court plainly erred by
failing to ensure that his waiver of his right to be present at voir
dire was knowing and voluntary. Defendant also challenges the

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sufficiency of the evidence supporting his convictions for
aggravated murder. Finally, Defendant argues that his trial
counsel was constitutionally ineffective.

¶19 Where Defendant’s arguments rest on a claim of plain
error, we require that he 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, or
phrased differently, our confidence in the verdict is
undermined.” State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993).

¶20 “The constitutionality of a statute is a question of law that
we review for correctness.” State v. Angilau, 2011 UT 3, ¶ 7, 245
P.3d 745 (cleaned up). “In evaluating sufficiency of the evidence
claims, we review the evidence and all inferences which may
reasonably be drawn from it in the light most favorable to the
verdict.” Salt Lake City v. Carrera, 2015 UT 73, ¶ 6, 358 P.3d 1067
(cleaned up).

¶21 “To succeed on a claim of ineffective assistance of
counsel, [Defendant] must establish that trial counsel performed
deficiently and that counsel’s deficient performance resulted in
prejudice.” State v. Heywood, 2015 UT App 191, ¶ 16, 357 P.3d
565. “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
(cleaned up).

ANALYSIS

¶22 Defendant’s specific contentions can be more broadly
categorized as issues with jury selection, sufficiency of the

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evidence, and defense counsel’s performance. We address his
contentions under that framework.

I. Jury Selection

A. Number of Jurors

¶23 Defendant presents us with a convoluted analysis that, in
his view, demonstrates that the “trial court committed plain
error in not ensuring that [he] be tried by a twelve-person jury.”
He begins with a proposition no one will dispute—that criminal
defendants have the constitutional right to a public trial by an
impartial jury. See U.S. Const. amend. VI. And under the Utah
Constitution, “the jury shall consist of twelve persons” in
“capital cases.” Utah Const. art. I, § 10. He then recounts a brief
history of the death penalty in the United States and in Utah,
including our supreme court’s decision in State v. James, 512 P.2d
1031 (Utah 1973), and a related discussion of the penalty theory
and the classification theory of capital crimes. 1 See id. at 1032–33.
Although the James court concluded that “[t]he ‘classification’
theory appears preferable,” id. at 1033, Defendant goes on to
suggest that his “case is unique in several respects and deserves
an analysis of both theories to determine what a ‘capital’ case
truly is under current Utah state law.” Defendant then sets forth
that analysis and ultimately concludes, “A case where life
without parole is a potential punishment must be treated in all
respects as a capital case.”

1. The penalty theory refers to a capital offense as a “punishment
or penalty which may be imposed upon the person found guilty
of a crime, rather than a definition of a particular crime.” State v.
James, 512 P.2d 1031, 1033 (Utah 1973). In contrast, the
classification theory refers to a capital offense as “a category of
offenses for which the punishment of death might be imposed.”
Id.

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¶24 The complexity of this analysis alone indicates that
Defendant cannot meet the burden of showing plain error,
because any alleged error would not have been obvious to the
trial court. See State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993).
In making his argument, Defendant cites no precedent expressly
declaring that under circumstances like those present in this
case, a twelve-person jury is required. And “relief is not
available via the plain-error doctrine unless [d]efendants
persuade us that the error they allege is supported on the basis
of settled law.” State v. Bruun, 2017 UT App 182, ¶ 33, 405 P.3d
905 (cleaned up).

¶25 And aside from the question of obviousness, Defendant
has demonstrated no error. When the State charges an individual
with aggravated murder, it must also decide within sixty days of
arraignment whether to pursue the charge as a capital felony or
a noncapital first degree felony. See Utah Code Ann. § 76-5-
202(3) (LexisNexis 2017). The case becomes a capital case only if
the State seeks the death penalty. See id. § 76-5-202(3)(a). In that
case, if the individual is convicted, he is sentenced under section
76-3-207 where the possible sentences are death, life without
parole, or twenty-five years to life. See id. § 76-3-207. But if the
State chooses not to seek the death penalty, “aggravated murder
is a noncapital first degree felony punishable as provided in
Section 76-3-207.7,” see id. § 76-5-202(3)(b), where the sentencing
options are “life in prison without parole” or “an indeterminate
prison term of not less than 25 years and that may be for life.”
See id. § 76-3-207.7.

¶26 In the amended information, whereby the State brought
the aggravated murder charges against Defendant, 2 the State
explicitly stated that it would not seek the death penalty. And

2. The first information charged Defendant only with drug and
weapons crimes.

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under the plain language of section 76-5-202(3)(b), the murder
charges were therefore noncapital first degree felonies. 3 Under
these circumstances, Defendant has not demonstrated that it was
error for the trial court to empanel a jury of eight, rather than
twelve, members. Simply put, Defendant has not met his burden
of establishing plain error.

B. Constitutionality of the Aggravated Murder Statute

¶27 Defendant separately challenges the constitutionality of
sections 76-5-202(3)(b) and 76-3-207.7 of the Utah Code. He
argues that these sections work together “to create a special
sentencing provision for an aggravated murder [sentence] where
the state does not seek to impose a death sentence on the
defendant.” The unconstitutionality comes, he claims, because
the legislature was “unclear” as to whether it “intended to
deprive a defendant of the capital procedural protections that
are mandated by both the federal and Utah constitutions.”
Ultimately, Defendant argues that “the reduction to a non-
capital felony essentially strips a defendant of constitutional
safeguards, thus creating two separate classes of persons
charged with the same crime[, and such] a deprivation of
safeguards, and creation of disparate classes, is unconstitutional
as applied.” As with his earlier contention regarding the
mandated size of the jury, Defendant’s argument reveals that the
constitutional question does not satisfy the strictures of our plain
error doctrine. See State v. Dunn, 850 P.2d 1201, 1208–09 (Utah
1993).

3. We thus do not reach the question of whether a different
outcome would result if the case had been charged as a capital
offense and the State thereafter decided not to seek the death
penalty.

20150859-CA 9 2018 UT App 91
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¶28 Because “it has become settled as a general principle[]
that a constitutional question is not to be reached if the merits of
the case in hand may be fairly determined on other than
constitutional issues,” Hoyle v. Monson, 606 P.2d 240, 242 (Utah
1980), we instead resolve this issue on the question of
obviousness. Where Defendant’s challenge is a claim of plain
error, he essentially argues that the trial court should have sua
sponte determined that the aggravated murder statute was
unconstitutional and declared it so. This argument fails under
the plain error rubric.

¶29 Defendant has not pointed to any settled law that
suggests the aggravated murder statute was unconstitutional in
the way he contends. As a result, Defendant has not
“persuade[d] us that the error [he] allege[s] is supported on the
basis of settled law,” and we therefore cannot conclude that any
error would have been obvious to the trial court. See State v.
Bruun, 2017 UT App 182, ¶ 33, 405 P.3d 905. We thus need not
reach the question of the constitutionality of the aggravated
murder statute because Defendant’s plain-error challenge fails
on the basis of obviousness.

C. Waiver of Right to Be Present at Voir Dire

¶30 Defendant next argues that we should reverse because he
“was not present for voir dire and had no input in the selection
of his jury.” He contends that this was problematic because the
trial court purportedly did not determine whether Defendant’s
“waiver of his right to be present for voir dire was made
knowingly and voluntarily.” Separately, he argues that defense
counsel’s advice that he waive his right to be present for voir
dire was constitutionally ineffective.

1. Knowing and Voluntary Waiver

¶31 Before the jury was selected, defense counsel informed
the court, “It is our intention that we conduct the voir dire in

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chambers, that [Defendant] not be present at that. He and I
discussed that, and the reasons for that, and I just wanted to
make a record that he is in agreement with that procedure.” The
trial court then clarified with Defendant:

[Y]ou understand that you have the right to be
present at all critical stages in this proceeding, and
certainly jury selection is one of those critical
stages. So you have the right to be present while
the jurors are being questioned as part of the voir
dire and part of the jury selection process. Your
attorney says that you want to waive your right to
be present during jury selection.

The court then asked, “Is that correct?” Defendant responded,
“Yes. I trust him.” The court accordingly found “that the
defendant has knowingly and voluntarily waived his right to be
present during the voir dire.”

¶32 Later, in the middle of the voir dire process, the trial court
explained that it wanted to make sure that it was not “setting
[itself] up for ineffective assistance, automatic reversal by the
Court of Appeals or the Supreme Court by him not being here.”
So it brought Defendant into the courtroom and explained there
were “just a couple of issues we want to address on the record,”
with “[o]ne of them [being] that [defense counsel] now says that
rather than wait here, that you’d rather go back to the jail, and
you don’t want to be here for the initial portion of the jury
selection when we bring the others in for the next two groups. Is
that right?” Defendant responded, “That’s correct, sir.”

¶33 Despite these two separate attempts to expressly confirm
that Defendant truly wished to waive his right to be present at
voir dire, Defendant now argues the “record and the
circumstances surrounding the waiver, coupled with case law
regarding similar waivers, demonstrates that the waiver could

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not be knowing and voluntary and the trial court committed
plain error.” We disagree.

¶34 In making his argument, Defendant encourages us to treat
waiver of the right to be present at voir dire no differently than
waiver of the right to counsel. He argues, “Similar to the right to
counsel, waiver of the right to be present at voir dire can have a
devastatingly negative effect on the outcome of the trial.” And
while we need not reach the question of whether these rights are
of equal importance, we cannot conclude that the trial court
should have known to treat the rights the same. In other words,
we again resolve Defendant’s claim of plain error by concluding
that any error would not have been obvious to the trial court.

¶35 Defendant essentially contends that waiver of any
constitutional right attached to criminal trials requires a detailed
colloquy to ensure that the defendant “fully understood the
nature of his right . . . and the dangers associated with the
waiver.” But he does not address constitutional rights that we
regularly allow criminal defendants to waive without such a
searching inquiry. For instance, we do not require such a
colloquy when a criminal defendant waives his right to testify.
See State v. Brooks, 833 P.2d 362, 365 (Utah Ct. App. 1992)
(holding “that the trial court bears no affirmative duty sua
sponte to engage in an on-the-record colloquy with defendant at
the time of trial to ensure a valid waiver of the right to testify”).
Similarly, no detailed discussion is typically held on the record
when a defendant waives his rights under the Confrontation
Clause. See State v. King, 2010 UT App 396, ¶ 51 n.13, 248 P.3d
984 (explaining that “a defendant may waive his constitutional
right of confrontation by electing to forgo cross-examination of a
witness”). And Defendant directs us to no Utah case law—and
we have found none—that explains whether waiver of the right
to be present at voir dire is more akin to waiver of the right to
testify or confront witnesses or, as Defendant would have us
conclude, waiver of the right to counsel. Given the dearth of

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relevant authority, it would not have been obvious to the trial
court that anything more was required of it. Under these
circumstances, we cannot agree that the trial court committed
any error, let alone an obvious one.

2. Advice of Counsel

¶36 Additionally, Defendant argues that defense counsel’s
advice that he waive his right to be present for voir dire was
constitutionally ineffective. To prevail on that claim, Defendant
“has the burden of demonstrating (1) that his counsel rendered a
demonstrably deficient performance that fell below an objective
standard of reasonable professional judgment, and (2) that
counsel’s performance resulted in prejudice.” State v. Sessions,
2014 UT 44, ¶ 17, 342 P.3d 738.

¶37 In arguing that defense counsel’s advice amounted to
deficient performance, Defendant asserts, “There is absolutely
no conceivable advantage to advising a defendant against being
present at jury selection.” But we have previously recognized
possible conceivable advantages—defense counsel could have
reasonably believed “that the benefits of the client’s presence
might be outweighed by the risk that potential jurors might be
put off by the defendant’s appearance or demeanor,” see State v.
Martinez-Castellanos, 2017 UT App 13, ¶ 47, 389 P.3d 432, cert.
granted, 400 P.3d 1045 (Utah 2017), or that potential jurors would
be more candid without Defendant present, see United States v.
Bertoli, 40 F.3d 1384, 1397 (3d Cir. 1994). Because he does not
address these potential rationales for defense counsel, Defendant
has not shown that the advice “fell below an objective standard
of reasonable professional judgment.” See Sessions, 2014 UT 44,
¶ 17. As a result of Defendant’s failure to show deficient
performance, we need not reach the issue of prejudice. Archuleta
v. Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232. Accordingly, we affirm
as to Defendant’s waiver of his right to be present at jury voir
dire.

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II. Sufficiency of the Evidence

¶38 We next consider Defendant’s contention that his
convictions for aggravated murder were not supported by
sufficient evidence. He specifically argues that the evidence
failed to prove he intentionally or knowingly caused Girlfriend’s
death and that the evidence failed to disprove Defendant killed
Friend in self-defense. We will not disturb a jury verdict unless
“the evidence and all inferences which may reasonably be drawn
from it,” when viewed “in the light most favorable to the
verdict,” are “sufficiently inconclusive or inherently improbable
that reasonable minds must have entertained a reasonable doubt
that the defendant committed the crime.” State v. Shumway, 2002
UT 124, ¶ 15, 63 P.3d 94.

A. Girlfriend

¶39 For the jury to have convicted Defendant of aggravated
murder for Girlfriend’s death under the facts of this case, it must
have found beyond a reasonable doubt that Defendant
“intentionally or knowingly cause[d] the death of” Girlfriend,
and that “the homicide was committed incident to one act,
scheme, course of conduct, or criminal episode during which
two or more persons were killed.” See Utah Code Ann. § 76-5-
202(1)(b) (LexisNexis 2017). 4 Defendant contends that the jury
could not have properly so found because he “believed the firing
chamber in [his] gun was unloaded” and thus he “lacked intent
to shoot and kill” his victims. In so arguing, he directs our
attention to State v. Ricks, 2013 UT App 238, 314 P.3d 1033, in
which the defendant was convicted of depraved indifference
murder. See id. ¶ 17. He argues that because his mental state

4. For obvious reasons, Defendant challenges only the evidence
supporting the finding that he possessed the requisite mens rea
for the crime.

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matched that of the Ricks defendant, the evidence was
insufficient to support a more culpable mental state, such as
intentional or knowing. We are not persuaded.

¶40 In the present case, the jury heard evidence that
Defendant pointed his gun at Girlfriend’s head. And while the
Ricks court considered a factually similar case, in that the
defendant held a gun to the victim’s head and claimed to believe
a round was not chambered, see id. ¶ 2, that court did not
consider whether the defendant’s conduct might have also been
sufficient to support a finding of intentional or knowing
conduct. Said another way, simply because the Ricks court
decided conduct similar to the conduct at issue here was
sufficient to support a conviction for depraved indifference
murder, see id. ¶¶ 2, 17, that does not mean that the conduct
could not also support a conviction requiring a different mental
state.

¶41 Indeed, here, the jury heard evidence sufficient to allow it
to find that Defendant knowingly or intentionally killed
Girlfriend. Defendant had owned his gun for twenty-eight years.
And unlike the gun involved in Ricks, Defendant’s gun was a
revolver. The State presented expert evidence regarding the
simplicity of knowing which cylinders were loaded, given that
the rim of the cartridge protrudes slightly out of and above the
cylinder. By Defendant’s own account, under these
circumstances, he pointed the gun—which Defendant would
have easily seen was loaded—at Girlfriend’s head and pulled the
trigger. This evidence alone might be sufficient to support the
jury’s finding that he intentionally or knowingly caused
Girlfriend’s death. But we need not decide that because the jury
heard additional evidence of Defendant’s mental state.

¶42 For instance, evidence was presented that Defendant
failed to call 911 after shooting Girlfriend and instead shot a
second victim, Friend. Additionally, Defendant misled police

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about what had happened and was calm when talking to
Daughter. He also left the scene of the crime, wrote a note to his
mother under the apparent belief that he would be going to
prison, and proclaimed a plan to commit suicide. All of this
evidence supports a conclusion that the shooting was not an
accident. We accordingly will not disturb the jury’s verdict of
aggravated murder for Girlfriend’s death.

B. Friend

¶43 Defendant also challenges the sufficiency of the evidence
supporting his conviction of aggravated murder for Friend’s
death, arguing that he shot Friend in self-defense. The jury
received a self-defense instruction based on Defendant’s
assertion that he had felt the need to protect himself against
Friend.

¶44 “When there is a basis in the evidence, which would
provide some reasonable basis for the jury to conclude that the
defendant acted to protect himself from an imminent threat, . . .
the State has the burden to prove beyond a reasonable doubt
that the defendant did not act in self-defense.” State v. Lucero,
2012 UT App 202, ¶ 6, 283 P.3d 967 (cleaned up). Defendant
claims that the State’s “only attempt” to rebut his claim of self-
defense came during closing argument. But that is not the case.

¶45 For Defendant to have been justified in shooting Friend in
self-defense, he must have believed that his action was
“necessary to prevent death or serious bodily injury.” See Utah
Code Ann. § 76-2-402(1)(b) (LexisNexis 2017). But by
Defendant’s own account, he knew Friend had no weapon. And
although Defendant told police that Friend “loved to fight,” he
also admitted that he and Friend had never fought each other.
Moreover, according to Defendant’s explanation of events,
Friend only started up out of his seat after Defendant had shot
Girlfriend.

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¶46 Under these circumstances, we will not second-guess the
jury’s determination that Defendant, in twice shooting the
unarmed Friend, did not act in self-defense.

III. Ineffective Assistance of Counsel

¶47 Separate from the issue of his attendance at jury voir dire,
Defendant argues that defense counsel provided ineffective
assistance for two additional reasons. First, Defendant claims
that defense counsel failed to investigate or call witnesses.
Second, he claims that defense counsel should have moved to
sever the various charges at trial.

A. Failure to Investigate or Call Witnesses

¶48 Defendant’s first claim on this issue is that defense
counsel “did not investigate potential witnesses on behalf of the
defendant and was therefore ineffective.” But Defendant
provides no record evidence to support this claim. And the
evidence that is available in the record flies in the face of this
assertion. For instance, the record reveals that the court
appointed an investigator to assist with Defendant’s case, and
that the investigator sat with defense counsel during trial.

¶49 Without developing a record of what defense counsel did
or did not use the investigator for, Defendant cannot
demonstrate that defense counsel’s decisions were
unreasonable—and we cannot review such decisions without
knowing what they were. Indeed, our rules contemplate
situations where a record might need to be developed to support
a claim of ineffective assistance of counsel. See Utah R. App. P.
23B. Defendant does not seek a rule 23B remand or demonstrate
that one would be proper here. We therefore conclude that
Defendant has not shown defense counsel performed deficiently.
And “it is not necessary for us to address both components of
the [ineffective-assistance] inquiry if we determine that a

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defendant has made an insufficient showing on one.” Archuleta
v. Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232 (cleaned up).

B. Failure to Sever

¶50 Defendant’s final claim on appeal is that defense counsel
was ineffective for not moving to sever the drug-related charges
from the aggravated murder charges. This claim fails because
the record demonstrates that this decision was strategic. Defense
counsel used the drug-related evidence to strengthen
Defendant’s claim that the shooting was an accident, arguing
that if Defendant had not been under the influence of drugs, he
would not have shot Girlfriend.

¶51 Specifically, defense counsel presented evidence that
methamphetamine impairs judgment and thought processes. He
presented Defendant’s statement that he would not have fired
the gun if he had not used drugs. And such “strategic choices
made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.” See Strickland v.
Washington, 466 U.S. 668, 690 (1984). As the State points out, the
fact that this strategy was ultimately unsuccessful is irrelevant.
See State v. Ott, 2010 UT 1, ¶ 34, 247 P.3d 344. We thus reject
Defendant’s claim of ineffective assistance of counsel.

CONCLUSION

¶52 We affirm Defendant’s convictions for aggravated
murder. He has not demonstrated error regarding his absence
from jury voir dire, the number of jurors empaneled, the
sufficiency of the evidence against him, or defense counsel’s
performance.

¶53 Affirmed.

20150859-CA 18 2018 UT App 91