State v. Smith

2019 UT App 141

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
BRANDON PERRY SMITH,
Appellant.

Opinion
No. 20170282-CA
Filed August 22, 2019

Fifth District Court, St. George Department
The Honorable G. Michael Westfall
No. 101501945

Gary W. Pendleton, Mary C. Corporon, and J.D.
Lauritzen, Attorneys for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Brandon Perry Smith appeals his conviction of murder.
We affirm.

BACKGROUND

¶2 Smith was acquainted with Paul Ashton, who had a
history of violence and dealing drugs. Ashton had two
roommates, Roommate and Boyfriend. While living with
Ashton, Roommate and Boyfriend had been visited by another
individual (Friend) who used illegal drugs with Boyfriend at
Ashton’s home. Ashton, who had become a drug informant
 State v. Smith

following a previous arrest for drug possession with intent to
distribute, contacted his law enforcement handler and informed
him that he knew of two individuals the police might be
interested in investigating. A few days later, Roommate and
Boyfriend learned that Ashton was an informant. Boyfriend
texted Friend to ask if he would help them move out of Ashton’s
residence. Friend and his girlfriend (Girlfriend) accompanied
Roommate to Ashton’s residence while Boyfriend stayed at
another friend’s home. In an effort to prevent Ashton from
knowing that she was aware he was a police informant,
Roommate told Ashton that the reason she was moving out so
suddenly was that Boyfriend had been arrested.

¶3 Roommate’s ruse apparently did not fool Ashton,
however, because while Roommate, Friend, and Girlfriend
loaded a truck with Roommate and Boyfriend’s belongings,
Ashton began texting Smith. Ashton told Smith that he needed
“a piece” to “defend [himself]” because he had been “labeled a
rat.” Eventually, Smith agreed to help, arriving at Ashton’s
residence about forty minutes later with two guns. Smith was
wearing his shooting gloves and entered the apartment complex
stealthily from the back, anticipating trouble. He gave Ashton
one of the two guns, which Ashton put in his waistband. Soon
after, Friend and Girlfriend left with a truckload of belongings
while Roommate stayed behind to continue packing. Ashton
gave Smith a pipe wrapped in electrical tape and told him to
knock Roommate out, explaining that “then there would just be
two” to deal with when the others returned. Ashton also began
cutting lengths from a piece of rope to tie them up with. Smith
believed Ashton intended to “[tie] them up and [take] them out,
like, in the desert somewhere and then—yeah.” Despite Ashton’s
instructions, Smith did not hit Roommate because he did not
think the pipe was “substantial enough” to knock her out.

¶4 When Friend and Girlfriend returned, they and
Roommate began loading additional items into the truck. When
they could not find Boyfriend’s mountain bike, Roommate
confronted Ashton and accused him of stealing it. She called him

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 State v. Smith

names and hit him in the face with a plastic tool kit. Ashton and
Smith both pulled out their guns. Ashton shot Roommate in the
head, killing her instantly. He then shot Friend in the shoulder.
Friend fell to the ground and blacked out. By this time,
Girlfriend had locked herself in the bathroom, and Ashton yelled
at Smith to “go get her.”

¶5 Smith broke the bathroom door open and hit Girlfriend
in the head thirteen times with the pipe while Ashton waited
outside the bathroom. Although Smith initially intended only to
knock Girlfriend out, “that didn’t work” and she was in “a lot of
pain,” so “somewhere along the line,” Smith concluded that
things had “gone too far” and he “might as well just” kill her. He
slammed her head into the floor, choked her, and slashed her
throat three times with a pocket knife he had brought with him.
Ashton and Smith then fled. Girlfriend died from her wounds a
short time later.

¶6 In the meantime, Friend had escaped and called the
police. Police quickly caught up with Ashton and arrested him.
Soon after, Smith turned himself in because he heard that the
police were looking for him. At that time, Smith admitted that he
had loaned a gun to Ashton but claimed that he blacked out after
Ashton shot Roommate and Friend.

¶7 Officers picked up Smith and took him to the police
station. Before questioning Smith, the interviewing detective
(Detective) advised him of his Miranda 1 rights in the following
exchange:

[Detective:] But you understand you do have the
right to remain silent, that anything you say can
and will be used against you in court? Okay. You

1. Miranda v. Arizona, 384 U.S. 436 (1966), outlines the warnings
police are required to give suspects subjected to custodial
interrogation. Id. at 479.

20170282-CA 3 2019 UT App 141
 State v. Smith

have the right to an attorney and to have one
present with you while you’re being questioned—
and if you can’t afford one—

[Smith:] [I can’t afford] one. [I can’t] afford one.

[Detective:] Yeah. The courts will appoint you a
lawyer if you really need one, okay?

[Smith:] Okay.

[Detective:] So—

[Smith:] If it came to that or—

[Detective:] Yeah. If it—you know, if it comes to
that, but—so keep those in mind, you know, and
go ahead and tell me what you want to tell me.

Detective then proceeded to question Smith, who confessed to
killing Girlfriend.

¶8 Smith was charged with aggravated murder and
aggravated assault. 2 Prior to trial, he moved the court to
suppress his police interview on the ground that his Miranda
rights had been violated. Smith also moved the court to suppress
a crime scene video and autopsy photos of Girlfriend. The court
denied both motions.

¶9 Detective passed away before trial, but the State played
the audio recording of his interview with Smith for the jury. The
State also called as a witness the police officer who transported
Smith to jail after his interview (Officer). Defense counsel sought
to cross-examine Officer regarding a conversation he had with

2. The aggravated assault was based on Smith’s action of
pointing his gun at Friend.

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 State v. Smith

Smith in which he asked Smith “what he felt as he was
committing the act of murder.” Smith explained to Officer that
“he felt he needed to complete the act because he didn’t know
what [Ashton] would do to him if he didn’t.” When Officer
asked Smith “what he meant,” Smith responded, “[Ashton] just
shot two people. So I thought maybe he would shoot me.” The
State objected to this line of questioning as being beyond the
scope of Officer’s direct examination, and defense counsel
agreed to defer questioning about the conversation until Smith
presented his defense.

¶10 When it came time for Smith to present his defense on
day five of the trial, he began by calling Officer as a witness, but
the State objected on hearsay grounds to Officer testifying
regarding his conversation with Smith. Smith asserted that the
conversation should be admitted under the rule of completeness.
See Utah R. Evid. 106. The court initially sustained the State’s
objection, but upon receiving further information that same day,
it indicated that it would reexamine the issue if defense counsel
provided additional relevant authority. Defense counsel did not
raise the issue again until after the jury was excused on day
seven of the trial. At that point, the court heard additional
argument and took the State’s objection to Officer’s testimony
under advisement. The next day, following further discussion of
the matter off the record, the State withdrew its objection, and
Officer was permitted to testify regarding his conversation with
Smith.

¶11 Smith moved for a mistrial on the grounds that the
delayed ruling had “an unfair effect upon the defendant.”
Because Officer’s statement was admissible under the rule of
completeness, Smith argued, the jury should have been
permitted to hear that testimony at the same time it heard the
audio recording of Smith’s police interrogation. The court denied
Smith’s motion because it determined that any delay was invited
by Smith, who did not argue that the rule of completeness was
applicable at the time of Officer’s direct examination and then

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 State v. Smith

delayed pursuing the issue when the court indicated its
willingness to reconsider its initial ruling.

¶12 In seeking to establish a basis for his fear of Ashton and
his belief that Ashton might kill him if he did not kill Girlfriend,
Smith also sought to present evidence of “jailhouse kites”—illicit
letters exchanged by prison inmates—written by Ashton while
he was incarcerated after the killings, as well as evidence of a
confrontation Ashton had with a friend outside a gas station on
the day of the killings, in which he threatened to kill his friend
and another friend if they crossed Ashton.

¶13 The court examined each line of the kites in detail and
required that they be redacted to exclude material that the court
deemed to be either hearsay or irrelevant. The court also
excluded the evidence of Ashton’s earlier confrontation,
determining it was irrelevant because there was no evidence that
Smith was aware of the confrontation at the time of the killings.

¶14 Relying on evidence that he felt threatened by Ashton,
Smith requested that the jury be given an instruction on the
affirmative defense of compulsion. However, the court refused
to give such an instruction because it determined that the
evidence presented at trial was not sufficient to support the
defense.

¶15 Following trial, the jury acquitted Smith of the aggravated
assault charge. The jury found Smith guilty of aggravated
murder, 3 but the jury also found that he committed the murder

3. The jury found three separate aggravators—that “the
homicide was committed incident to one act, scheme, course of
conduct, or criminal episode during which two or more persons
were killed”; that “the homicide was committed incident to an
act, scheme, course of conduct, or criminal episode during which
the actor attempted to commit Kidnapping”; and that “the
homicide was committed in an especially heinous, atrocious,
(continued…)

20170282-CA 6 2019 UT App 141
 State v. Smith

while under extreme emotional distress. His conviction was
therefore reduced from aggravated murder to murder. See Utah
Code Ann. § 76-5-205.5(5)(b)(i) (LexisNexis 2017). Smith now
appeals.

ISSUES AND STANDARDS OF REVIEW

¶16 Smith first argues that the trial court erred in denying his
motion to suppress his police interview. “We review a district
court’s ruling on a motion to suppress for correctness, and we
review its factual findings in support of its ruling for clear
error.” State v. Gardner, 2018 UT App 126, ¶ 11, 428 P.3d 58.
“When a trial court bases its ultimate conclusions concerning the
waiver of defendant’s Miranda rights, upon essentially
undisputed facts, in particular the transcript of an officer’s
colloquy with defendant, its conclusions present questions of
law which we review under a correction of error standard.” State
v. Gutierrez, 864 P.2d 894, 898 (Utah Ct. App. 1993) (quotation
simplified).

¶17 Second, Smith asserts that the trial court erred in
declining to instruct the jury on the affirmative defense of
compulsion. “[W]e review a court’s ruling on a proposed jury
instruction for correctness . . . .” State v. Maestas, 2012 UT 46,
¶ 148, 299 P.3d 892.

¶18 Third, Smith challenges the court’s denial of his motion in
limine to exclude the crime scene video and autopsy photos
under rule 403 of the Utah Rules of Evidence. We review a
court’s ruling made pursuant to rule 403 for abuse of discretion.
Met v. State, 2016 UT 51, ¶ 36, 388 P.3d 447.

(…continued)
cruel, or exceptionally depraved manner.” See Utah Code Ann.
§ 76-5-202 (LexisNexis Supp. 2018).

20170282-CA 7 2019 UT App 141
 State v. Smith

¶19 Fourth, Smith argues that the court erred in redacting the
jailhouse kites and excluding evidence of the confrontation at the
gas station. “Although the admission or exclusion of evidence is
a question of law, we review a trial court’s decision to admit or
exclude specific evidence for an abuse of discretion.” State v.
Cruz-Meza, 2003 UT 32, ¶ 8, 76 P.3d 1165.

¶20 Finally, Smith argues that the trial court erred in denying
his motion for mistrial. “A trial court’s decision to grant or deny
a mistrial will not be disturbed on appeal absent an abuse of
discretion.” State v. Harris, 2004 UT 103, ¶ 21, 104 P.3d 1250.

ANALYSIS

I. Motion to Suppress

¶21 Smith argues that the trial court erred in denying his
motion to suppress his police interview. Smith raises two
arguments in support of this assertion, both concerning his right
to counsel.

A. Adequacy of Miranda Warnings

¶22 Smith first argues that Detective’s warning did not
adequately inform him of his right to have an attorney
appointed prior to any questioning. Miranda v. Arizona, 384 U.S.
436 (1966), requires that a person subject to custodial
interrogation be informed “that he has the right to the presence
of an attorney, and that if he cannot afford an attorney one will
be appointed for him prior to any questioning if he so desires.”
Id. at 479. Smith asserts that Detective’s statement, “The courts
will appoint you a lawyer if you really need one . . . if it comes to
that,” did not adequately inform him of his right to a lawyer
during questioning. Instead, Smith asserts, the statement
conditioned his right “upon the occurrence of a future event or
some court’s determination that he ‘really needed’ an attorney.”

20170282-CA 8 2019 UT App 141
 State v. Smith

¶23 However, Miranda warnings need not be repeated word
for word. In reviewing the adequacy of Miranda warnings, our
“inquiry is simply whether the warnings reasonably convey to a
suspect his rights as required by Miranda.” Duckworth v. Eagan,
492 U.S. 195, 203 (1989) (quotation simplified). With respect to
the right to counsel, a statement indicating that counsel will be
appointed at a future time will not be considered erroneous so
long as the warnings as a whole “apprise the accused of his right
to have an attorney present if he [chooses] to answer questions.”
Id. at 204–05.

¶24 For example, in Duckworth, a suspect was informed,

You have a right to talk to a lawyer for advice
before we ask you any questions, and to have him
with you during questioning. You have this right
to the advice and presence of a lawyer even if you
cannot afford to hire one. We have no way of
giving you a lawyer, but one will be appointed for
you, if you wish, if and when you go to court.

Id. at 198 (quotation simplified). The Supreme Court rejected the
assertion that the “‘if and when you go to court’ language
suggested that only those accused who can afford an attorney
have the right to have one present before answering any
questions.” Id. at 203 (quotation simplified). Rather, the Court
determined that the warnings, read as a whole, satisfied Miranda
because they informed the suspect of his right to consult with a
lawyer prior to questioning and to have a lawyer present during
questioning. See id. at 203–05.

¶25 Our supreme court reached a similar conclusion in
examining a Miranda warning that stated, “If you cannot afford
an attorney, you have the right to have an attorney appointed for
you by the court at a later date.” State v. Strain, 779 P.2d 221, 223
(Utah 1989) (quotation simplified). The court determined that
informing a defendant “about the immediate unavailability of

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 State v. Smith

court-appointed counsel for him” did not carry “any implication
that he was required to submit to an interview with law
enforcement officers without the presence of appointed counsel
if he could not afford one.” Id. Because the suspect was also
informed that he had the right to the presence of an attorney
during questioning, the reference to the actual appointment of
counsel taking place at a later date did not link the right to
counsel to a later date or a court appearance. See id. at 224.

¶26 The Miranda warnings here were similar to those in
Duckworth and Strain. Smith was explicitly informed, “You have
the right to an attorney and to have one present with you while
you’re being questioned.” (Emphasis added.) Like the warning in
Strain, Detective’s statement regarding appointed counsel—“The
courts will appoint you a lawyer if you really need one . . . if it
comes to that”—related to the procedure and timing of
appointing counsel, not Smith’s right to have counsel, which had
already been explicitly confirmed. Smith was informed of the
right to remain silent and the right to have counsel present for
questioning; nothing in the warnings implied that “he was
required to submit to an interview with law enforcement officers
without the presence of appointed counsel if he could not afford
one,” see Strain, 779 P.2d at 223. Thus, we agree with the trial
court that Detective’s Miranda warnings adequately informed
Smith of his right to receive appointed counsel prior to
questioning. 4

B. Request for Counsel

¶27 Second, Smith argues that his statement to Detective that
he could not afford an attorney constituted an ambiguous

4. Beyond his assertions regarding the adequacy of the warnings,
Smith makes no argument on appeal asserting that he did not
voluntarily, knowingly, and intelligently waive his Miranda
rights by electing to answer Detective’s questions after receiving
the warnings.

20170282-CA 10 2019 UT App 141
 State v. Smith

invocation of his right to counsel and that Detective should have
clarified the request before proceeding with any questioning.
When a suspect invokes his right to counsel during custodial
interrogation, “the interrogation must cease until an attorney is
present” “unless the accused himself initiates further
communication, exchanges, or conversations with the police.”
Edwards v. Arizona, 451 U.S. 477, 485 (1981) (quotation
simplified). Interpreting the Fifth Amendment to the United
States Constitution, our supreme court held in State v. Wood, 868
P.2d 70 (Utah 1993), that when such an invocation of the right to
counsel is “ambiguous or equivocal . . . , questioning with
respect to the subject matter of the investigation must
immediately stop, and any further questioning must be limited
to clarifying the request.” Id. at 85.

¶28 The year after our supreme court issued its decision in
Wood, the United States Supreme Court took up the issue and
held that, at least with respect to a suspect who has initially
waived his or her Miranda rights, officers are not required to
cease questioning where the suspect’s “reference to an attorney
. . . is ambiguous or equivocal.” Davis v. United States, 512 U.S.
452, 459 (1994). In light of this holding, our supreme court was
asked in State v. Leyva, 951 P.2d 738 (Utah 1997), to assess the
continuing validity of Wood. Although the court disavowed
Wood “to the extent that Wood may be read more broadly than
Davis,” it held that Wood continued to apply to pre-waiver
requests for counsel. Id. at 743.

¶29 Subsequently, in Berghuis v. Thompkins, 560 U.S. 370
(2010), the United States Supreme Court again examined the
issue of ambiguous and equivocal invocations of Miranda rights,
this time in the context of the right to remain silent. Relying on
Davis, the Supreme Court determined, in the pre-waiver context,
that invocation of either the right to counsel or the right to
remain silent must be unequivocal. See id. at 381 (explaining that
“there is no principled reason to adopt different standards for
determining when an accused has invoked the Miranda right to
remain silent and the Miranda right to counsel”). The Court

20170282-CA 11 2019 UT App 141
 State v. Smith

reasoned that “[t]reating an ambiguous or equivocal act,
omission, or statement as an invocation of Miranda rights”
would contribute only “marginally to Miranda’s goal of
dispelling the compulsion inherent in custodial interrogation”
while placing “a significant burden on society’s interest in
prosecuting criminal activity.” Id. at 382 (quotation simplified).
Because the Berghuis Court held that invocation of the right to
counsel must be unequivocal in both the pre- and post-waiver
contexts, 5 Berghuis effectively overturns our supreme court’s
holding in Leyva.

¶30 Smith nevertheless asserts that we should interpret the
Utah Constitution as requiring the heightened Wood–Leyva
standard with respect to pre-waiver invocations of Miranda
rights. But the Utah Supreme Court “has never specifically held
that Miranda-type warnings are required under the Utah
Constitution.” Leyva, 951 P.2d at 743 (quotation simplified).
Indeed, our supreme court has repeatedly disavowed statements
of law regarding Miranda “to the extent” that they “afforded
broader protections than those available under United States
Supreme Court decisions applying Miranda law.” Id. (quotation
simplified); accord State v. Mirquet, 914 P.2d 1144, 1147 n.2 (Utah
1996). Smith asserts that departing from Leyva now would
“undermine rights long enjoyed in Utah.” However, the analysis
in both Wood and Leyva interpreted only the federal Constitution,
not the Utah Constitution. See Leyva, 951 P.2d at 743 (“In
determining the content and scope of Miranda-based protections,
we have looked to the United States Constitution as interpreted
by the United States Supreme Court rather than to the

5. Although the Supreme Court did not engage in an explicit
discussion of the distinction between pre- and post-waiver
invocation of the right to counsel, it was clearly aware that its
decision effectively extended Davis to the pre-waiver context, as
the four-justice dissent distinguished Davis for just this reason.
See Berghuis v. Thompkins, 560 U.S. 370, 407–08 (2010)
(Sotomayor, J., dissenting).

20170282-CA 12 2019 UT App 141
 State v. Smith

Constitution of Utah.”). And their holdings have since been
contradicted by the United States Supreme Court. See Berghuis,
560 U.S. at 381. Thus, just as our supreme court in Leyva
determined that it was “constrained to follow Davis” by
disavowing any contradictory implications in Wood, we are now
constrained to follow Berghuis in determining that the invocation
of the right to counsel in the pre-waiver context must be
unequivocal. See id. Smith’s ambiguous reference to counsel
therefore did not require Detective to stop his questioning or
seek clarification of Smith’s intent. Accordingly, the trial court
did not err in denying Smith’s motion to suppress.

II. Compulsion Instruction

¶31 Smith next challenges the trial court’s refusal to give the
jury an instruction regarding compulsion. “Compulsion is an
affirmative defense.” State v. Dozah, 2016 UT App 13, ¶ 16, 368
P.3d 863.

When a criminal defendant requests a jury
instruction regarding a particular affirmative
defense, the court is obligated to give the
instruction if evidence has been presented—either
by the prosecution or by the defendant—that
provides any reasonable basis upon which a jury
could conclude that the affirmative defense applies
to the defendant.

State v. Low, 2008 UT 58, ¶ 25, 192 P.3d 867. “However, a court
need not instruct the jury on the requested affirmative defense
where the evidence is so slight as to be incapable of raising a
reasonable doubt in the jury’s mind as to whether the defendant
acted in accordance with that affirmative defense.” State v. Burke,
2011 UT App 168, ¶ 81, 256 P.3d 1102 (quotation simplified).

¶32 With respect to the affirmative defense of compulsion,
Utah law provides,

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 State v. Smith

A person is not guilty of an offense when he
engaged in the proscribed conduct because he was
coerced to do so by the use or threatened imminent
use of unlawful physical force upon him or a third
person, which force or threatened force a person of
reasonable firmness in his situation would not
have resisted.

Utah Code Ann. § 76-2-302(1) (LexisNexis 2017). For a threat to
be “imminent,” it must “appear that it had been communicated
to the defendant that he would be subjected to physical force
presently.” State v. Harding, 635 P.2d 33, 35 (Utah 1981). Further,
the force or threat of force must be “specific” and leave the
defendant with “no reasonable alternative to the commission of
the crime charged.” State v. Maama, 2015 UT App 234, ¶ 14, 359
P.3d 1266 (quotation simplified).

¶33 Here, the only evidence of compulsion presented to the
jury was that Smith witnessed Ashton shoot two people
immediately before Ashton instructed Smith to “take out”
Girlfriend. When questioned by police, Smith stated that “he felt
he needed to complete the act because he didn’t know what
[Ashton] would do to him if he didn’t” and then clarified, “He
just shot two people. So I thought maybe he would shoot me.”
(Emphasis added.)

¶34 This evidence was insufficient for the jury to find that
Smith murdered Girlfriend because he was coerced to do so.
That is, no evidence was presented to show that Ashton
communicated a specific threat to Smith either verbally or
otherwise. Smith’s supposition that “maybe” Ashton would
shoot him if he did not comply with Ashton’s instruction to
“take out” Girlfriend does not evidence such a threat. Smith
asserts that a threat could be inferred from Ashton’s violent
propensities toward friends and acquaintances that cross him, as
evidenced by Ashton’s interaction at the gas station and the
sentiments expressed in his jailhouse kites. But even accepting

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the premise that a specific threat sufficient to satisfy the statute
could be inferred from Ashton’s violent history and character,
there was no evidence presented or proffered suggesting that
Smith was aware of these propensities at the time he killed
Girlfriend. 6 Thus, the jailhouse kites—written after the killings—
and the gas station confrontation—which Smith was not aware
of at the time of the killings—even if admitted, could not have
provided sufficient evidence of compulsion. There was therefore
no “reasonable basis” for the jury to conclude that Smith was
compelled by threat to murder Girlfriend. 7 See Low, 2008 UT 58,

6. Smith’s contention that a threat sufficient to satisfy the
compulsion defense could be inferred from previous conduct is
not supported by the plain language of the statute or by Utah
case law interpreting the statute. See, e.g., State v. Harding, 635
P.2d 33, 34 (Utah 1981) (requiring that a threat of imminent use
of unlawful force be communicated); State v. Aranda, 2002 UT
App 52U, para. 8 (“We fail to see how evidence regarding the
violent criminal history and character of defendant’s co-
perpetrators would have established an ‘essential element’ to
defendant’s compulsion defense. This defense requires that
defendant or the victims at the time were faced with a specific,
imminent threat of death or serious bodily harm if defendant did
not assist her co-perpetrators in committing these crimes . . . .”
(quotation simplified)). And even if awareness of violent
character could lend support to a compulsion defense, such
awareness would likely undermine the defense by also serving
as evidence that the defendant had knowingly put himself in a
situation in which he would be subject to duress, see infra note 7.

7. The State also asserts that a compulsion defense was
unavailable to Smith because he “intentionally, knowingly, or
recklessly place[d] himself in a situation in which it is probable
that he will be subjected to duress.” See Utah Code Ann. § 76-2-
302(2) (LexisNexis 2017). In light of our determination that the
evidence of compulsion was insufficient to require a jury
instruction, we need not address this assertion.

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 State v. Smith

¶ 25. Accordingly, the trial court correctly denied Smith’s
request for a compulsion instruction.

III. Crime Scene Video and Autopsy Photos

¶35 Smith next challenges the trial court’s denial of his motion
in limine to exclude the crime scene video and autopsy photos
on the ground that they were unfairly prejudicial. Rule 403 of the
Utah Rules of Evidence permits exclusion of relevant evidence
“if its probative value is substantially outweighed by a danger of
. . . unfair prejudice.” Utah R. Evid. 403. “Evidence is unfairly
prejudicial when it has an undue tendency to suggest decision
on an improper basis, commonly, though not necessarily, an
emotional one.” State v. Thompson, 2017 UT App 183, ¶ 26, 405
P.3d 892 (quotation simplified). Rule 403 is an “inclusionary
rule.” Id. (quotation simplified). And it therefore “imposes the
heavy burden not only to show that the risk of unfair prejudice
is greater than the probative value, but that it substantially
outweighs the probative value.” Id. (quotation simplified).

¶36 Smith argues that the photographs and video were
unduly prejudicial because the photographs showed “gaping
wounds” and the photographs and video “depict[ed] quantities
of blood spray, spatter, and pooling on the walls, cabinets, toilet,
bathtub, and floor of the master bathroom.” He further asserts
that the State used the evidence for the purpose of inflaming the
jury rather than for a proper, relevant purpose. And he
maintains that because evidence of Girlfriend’s injuries was
established by other medical evidence at trial, the photographs
and crime scene video were unnecessary and should have been
excluded.

¶37 While the photographs and video contained disturbing
images, the trial court did not exceed its discretion in concluding
that their probative value was not substantially outweighed by
the danger of unfair prejudice. Contrary to Smith’s assertion, the
photos and video were relevant to prove one of the aggravating
circumstances charged by the State—that the murder was

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 State v. Smith

committed “in an especially heinous, atrocious, cruel, or
exceptionally depraved manner.” Utah Code Ann. § 76-5-
202(1)(r) (LexisNexis 2017). This aggravator “must be
demonstrated by physical torture, serious physical abuse, or
serious bodily injury of the victim before death.” Id. The crime
scene video and photographs were highly relevant to this
aggravator because they provided evidence that the victim’s
injuries were inflicted with the “intent to cause wholly
unnecessary suffering to the victim[].” 8 See State v. Tuttle, 780
P.2d 1203, 1218 (Utah 1989). And the fact that evidence of
Girlfriend’s wounds could have been established by other means
is not, alone, “a basis for depriving the prosecution the
opportunity of profiting from the legitimate moral force of its
evidence in persuading a jury.” State v. Gulbransen, 2005 UT 7,
¶ 37, 106 P.3d 734 (quotation simplified), abrogated on other
grounds by Met v. State, 2016 UT 51, 388 P.3d 447.

¶38 The jury was tasked with assessing the heinousness of the
crime committed against Girlfriend, which necessarily required
the jury to evaluate the extent and nature of the injuries Smith
inflicted on Girlfriend. The photographs and video accurately
depicted those injuries. While the photos and video may have
been graphic, “the disturbing nature of the [images] is a function
of the injuries themselves, not the result of a deliberate attempt

8. Smith’s argument appears to assert that the photos and videos
were not relevant because his attack on Girlfriend was not as
prolonged as other cases involving torture—Girlfriend was not
bound, she was not sexually molested, and her injuries were all
serious enough to contribute to her death. Cf. State v. Decorso,
1999 UT 57, ¶¶ 4–6, 993 P.2d 837, abrogated by State v. Thornton,
2017 UT 9, 391 P.3d 1016. But if anything, this point enhances the
relevance of the photographic and video evidence; where the
heinousness of the crime was due solely to the “number and
nature” of the injuries, the State’s need to share a visual
depiction of those injuries with the jury was even greater than in
a case where a victim was tortured over a long period of time.

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 State v. Smith

by the State to distort or highlight the extent of the injuries.” See
State v. Stapley, 2011 UT App 54, ¶ 16, 249 P.3d 572. Further, the
trial court made efforts to minimize the prejudicial impact of the
images by ordering that all but one of the photographs be
displayed to the jury in black and white. In light of these
circumstances, we cannot say that the trial court exceeded its
discretion in admitting the crime scene video and photographs. 9

IV. Exclusion of the Jailhouse Kites and Gas Station Altercation

¶39 Smith also asserts that the court erred in excluding the
jailhouse kites and evidence of Ashton’s altercation at the gas
station. However, even assuming that this evidence was
erroneously excluded, its exclusion had no likelihood of
affecting the outcome of the case. This evidence was relevant
only to show Ashton’s propensity for violence, which Smith
hoped would establish the mitigating factor of extreme
emotional distress and Smith’s defense of compulsion. See supra
¶ 34. But the jury found special mitigation as a result of Smith’s
extreme emotional distress even without this evidence, and we

9. It is also worth noting that it is not reasonably likely that the
jury would have acquitted Smith without the crime scene video
and photographs in light of Smith’s own confession in his police
interview—which we have determined to be admissible—and
the unavailability of a compulsion defense. And there is also no
reasonable likelihood that exclusion of this evidence would have
prevented the jury from finding that the murder was
aggravated, since it found two more aggravating factors in
addition to the heinousness factor. See Utah Code Ann. § 76-5-
202 (LexisNexis 2017) (indicating that aggravated murder can be
based on “any” of a number of aggravating circumstances).
Further, the photographic evidence did not undermine Smith’s
mitigation argument, because the jury found that Smith’s actions
were mitigated by extreme emotional distress even having seen
the evidence. We can therefore conceive of no better outcome for
Smith had the evidence been excluded.

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 State v. Smith

have determined that the evidence was insufficient to support
Smith’s compulsion defense. Therefore, the exclusion of this
evidence ultimately had no impact on the outcome of the
proceedings. See State v. Evans, 2001 UT 22, ¶ 20, 20 P.3d 888
(defining harmless error as “an error that is sufficiently
inconsequential that there is no reasonable likelihood that it
affected the outcome of the proceedings”).

V. Motion for Mistrial

¶40 Finally, Smith challenges the trial court’s ruling on his
motion for mistrial, but he makes no attempt to address the basis
for the trial court’s ruling. Although acknowledging that the trial
court denied his motion for mistrial on the ground that any error
was invited, Smith’s entire argument focuses on the appropriate
timing for presentation of evidence under the rule of
completeness. 10 Because Smith has not addressed “the primary

10. We have previously observed that rule 106 is “a rule of
timing.” State v. Sanchez, 2016 UT App 189, ¶ 23, 380 P.3d 375,
aff’d in part, vacated in part, 2018 UT 31, 422 P.3d 866. Rule 106
provides, “If a party introduces all or part of a writing or
recorded statement, an adverse party may require the
introduction, at that time, of any other part—or any other writing
or recorded statement—that in fairness ought to be considered at
the same time.” Utah R. Evid. 106 (emphasis added). Given the
specific timing requirements outlined by the rule of
completeness, we question whether Smith’s invocation of rule
106 was timely. Unlike the defendant in Sanchez, who invoked
the rule of completeness in his cross-examination of a police
detective after a portion of his police interview was admitted
through that detective’s testimony, Smith did not raise the rule
of completeness when his police interview was first introduced.
Instead, he conceded that his attempted cross-examination of
Officer was beyond the scope of the State’s direct examination
and agreed to wait to question Officer about Smith’s allegedly
exculpatory statements until his case-in-chief, at which point he
(continued…)

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 State v. Smith

basis for the court’s decision,” he has not adequately briefed this
issue. See State v. Steed, 2017 UT App 6, ¶ 20, 391 P.3d 373 (“We
will not assume a party’s burden of argument and research.”
(quotation simplified)). In any event, our determination that
Smith was not entitled to an instruction on compulsion makes
any delay in admitting Officer’s statement harmless. 11 See supra
¶ 34.

CONCLUSION

¶41 The trial court did not err in denying Smith’s motion to
suppress his police interview, because he received adequate
Miranda warnings and Detective was not required to cease
questioning based on Smith’s ambiguous request for counsel.
The trial court did not err in denying Smith’s request for a jury
instruction on compulsion, because the evidence was insufficient
to establish a basis for the jury to be instructed on that
affirmative defense. Further, the court did not exceed its
discretion in admitting the crime scene video and photographs.
Because Smith was not entitled to a compulsion instruction, he
also cannot establish harm with respect to his challenges to the
court’s exclusion of the jailhouse kites and the gas station
evidence or its denial of his motion for mistrial. Thus, we affirm
Smith’s conviction.

(…continued)
invoked the rule of completeness in response to the State’s
hearsay objection. We ultimately need not address this issue,
however, because the State withdrew its objection at trial.

11. Smith conceded as much at oral argument.

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