2022 UT 30

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH

Petitioner,

v.

CHRISTOPHER JAMES BONDS,

Respondent.

No. 20191041

Heard September 17, 2021

Filed June 30, 2022

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake

The Honorable Keith A. Kelly

No. 161912346

Attorneys:

Sean D. Reyes, Att‘y Gen., Jeffrey S. Gray, Asst. Solic. Gen., 

Tony F. Graf, Salt Lake City, for petitioner

Nathalie S. Skibine, Salt Lake City, for respondent

JUSTICE PETERSEN authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, JUSTICE PEARCE, and JUDGE WILCOX joined.

ASSOCIATE CHIEF JUSTICE LEE filed an opinion concurring in part 

and concurring in the judgment.

JUSTICE HIMONAS sat for oral argument in this case but retired on 

March 1, 2022. DISTRICT JUDGE JEFFREY C. WILCOX participated as 

his replacement.

JUSTICE HAGEN became a member of the Court on May 18, 2022, 

after oral argument in this matter, and accordingly did not 

participate.

JUSTICE PETERSEN, opinion of the Court:

INTRODUCTION

¶1 After a night out at a bar, Christopher James Bonds shot 
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2

his friend Byron Williams in the back as Williams ran away from 

him. Williams died from his injuries. And Bonds was charged 

with his murder.

¶2 At trial, Bonds did not dispute that he killed Williams. 

But he argued that he did so only to protect his wife and children. 

During trial, the State disputed the genuineness of this defense. It 

elicited testimony from the police officer who arrested Bonds 

shortly after the shooting that Bonds had not said anything about 

protecting his family at the time of his arrest—although, the 

officer clarified that he had not questioned Bonds. In its closing 

argument, the State cast doubt on Bonds‘s defense by referencing

his failure to explain to the arresting officer why he shot 

Williams—arguing that it was ―common sense‖ that if you ―shot 

someone in the back [and] you have an opportunity to tell your 

side of what happened . . . . Well, why didn‘t he say anything?‖

¶3 At the end of trial, the district court instructed the jury on 

both self-defense and imperfect self-defense, the latter of which 

reduces the crime of murder to manslaughter if the defendant 

caused the death of another while incorrectly, but reasonably, 

believing that his conduct was legally justified or excused. Bonds 

agreed to the jury instructions. Ultimately, Bonds was convicted 

of murder and all but one of the related charges against him.

¶4 But the court of appeals vacated Bonds‘s convictions

because it concluded his counsel had been ineffective in two 

respects. State v. Bonds, 2019 UT App 156, ¶ 65, 450 P.3d 120. First, 

it concluded counsel was deficient in failing to object to the

―introduction and use of evidence about Bonds‘s silence while 

being arrested.‖ Id. And second, it determined counsel was 

deficient in not objecting to the manslaughter jury instruction, 

which listed imperfect self-defense along with the affirmative

elements of manslaughter and instructed the jury that to find 

Bonds guilty of manslaughter, it had to find that each element had 

been proven beyond a reasonable doubt. Id. ¶¶ 43, 65. The court 

concluded that this incorrectly reversed the burden of proof

applicable to imperfect self-defense. Id. And it ultimately 

determined that these instances of deficient performance 

prejudiced Bonds. Id. ¶ 65.

¶5 On certiorari, we must decide whether the court of 

appeals correctly vacated Bonds‘s convictions based on ineffective 

assistance of counsel. We agree with the court of appeals that the 

manslaughter jury instruction incorrectly shifted the burden of 

proof for imperfect self-defense. And we agree that defense 
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3

counsel was ineffective for not objecting to this instruction. The 

law is less clear on the Fifth Amendment implications of 

commentary by the prosecution on an accused‘s silence after 

arrest but before Miranda

1 warnings have been given. However, 

even if we assume that counsel could have kept out this evidence 

and was ineffective for failing to object to it, we conclude that 

these errors did not prejudice Bonds.

¶6 Bonds had a gun and Williams was unarmed. And Bonds

shot Williams in the back from ten feet away as Williams ran 

away from him. Assuming defense counsel had not made the

errors discussed, it is still not reasonably likely that the jury 

would have convicted Bonds of manslaughter rather than murder 

based on a theory of imperfect self-defense.

¶7 Accordingly, we reverse the court of appeals‘ decision

and reinstate the convictions that it vacated.

2

BACKGROUND3

¶8 Christopher Bonds, his wife Shania Bonds, his friend 

Byron Williams, and Williams‘s girlfriend Lena Valdez went to a 

bar together one evening. Shania‘s4 mother watched the Bonds 

children while the adults were out. The Bondses lived in the 

upstairs apartment of a fourplex, and Shania‘s mother lived in the 

other upstairs apartment of the same building.

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1 See Miranda v. Arizona, 384 U.S. 486 (1966).

2 Bonds was convicted of murder, felony discharge of a firearm 

with serious bodily injury, possession of a firearm by a restricted 

person, and two of the three counts of felony discharge of a 

firearm. The court of appeals reversed all of Bonds‘s convictions 

except for possession of a firearm by a restricted person, and 

remanded for a new trial. State v. Bonds, 2019 UT App 156, 

¶¶ 18, 65, 450 P.3d 120.

3 ―When reviewing a jury verdict, we examine the evidence 

and all reasonable inferences in a light most favorable to the 

verdict, reciting the facts accordingly. We present conflicting 

evidence only when necessary to understand issues raised on 

appeal.‖ State v. Ray, 2020 UT 12, n.2, 469 P.3d 871 (citation 

omitted).

4 We refer to Shania Bonds by her first name to avoid 

confusion with defendant Bonds, with no disrespect intended.
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¶9 At the bar, Bonds and Shania got in an argument with 

another patron. Shortly after 1:00 a.m., the party of four returned 

to the apartment complex. Bonds went inside his apartment and 

when he came back outside, he was holding a gun. Valdez

overheard Bonds telling Shania that he and Williams were going 

to go back and ―shoot up the bar.‖ Valdez urged Williams, who 

also went by ―Cheese,‖ to stay behind. They argued, and she told 

him that if he went, she was done with him.

¶10 Shania picked up her children from her mother, and the 

women went to the Bondses‘ apartment. As Shania was closing 

the door behind them, they heard gunshots. Shania slammed and 

locked the door and Valdez dropped to the floor. Valdez heard 

four gunshots: ―there was one and then . . . 10, 15 seconds later, 

there [were] three more.‖

¶11 Soon, Bonds was banging on the apartment door. As 

Shania let him in, Bonds ―said that he had shot Cheese.‖ Valdez 

ran to find Williams.

¶12 A resident of the apartment complex heard the gunshots 

and called 911 at 1:51 a.m. Meanwhile, Bonds left the apartment, 

eventually calling a friend for a ride about twenty minutes after 

the 911 call. He told the friend that he had killed Williams, but did 

not say anything during the six-minute conversation about why 

he had done it. The friend refused to pick him up.

¶13 When officers arrived at the apartment complex, they 

discovered Williams lying in the parking lot with a gunshot 

wound to the chest. Witnesses identified Bonds as the shooter, 

and officers on the scene described him over the radio, indicating 

that he was likely on foot. An officer spotted Bonds walking down

the sidewalk and called in his location, after which several officers 

moved in and took Bonds into custody. 

¶14 The officer who handcuffed Bonds observed dried blood 

on Bonds‘s shirt, watch, and knuckles. Between being handcuffed 

and being put in the police car, Bonds told the officer, ―I don‘t 

have guns on me. I don‘t have any guns on me.‖ During the drive 

to the police station, the officer did not question or Mirandize

Bonds. And Bonds did not volunteer any information about why 

he shot Williams.

¶15 At the West Valley City police station, detectives 

interviewed Bonds the next morning. In the interrogation room, 

Bonds waived his Miranda rights and agreed to speak with the 

detectives. He gave ―inconsistent accounts‖ about the evening. He 
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5

initially denied shooting Williams and told the detectives that the 

blood on him was ―not from that, at all‖; instead, it was from ―an 

altercation‖ with an individual at the bar earlier. Bonds claimed 

he heard the gunshots after he left the apartment complex and 

said he ―was never around, at the time, at all.‖

¶16 But eventually, Bonds confessed to shooting Williams. He 

gave detectives the following account of what happened. Bonds 

and Williams got into a fight outside in the stairway between 

Bonds‘s apartment and his mother-in-law‘s apartment, and 

Williams ―got aggressive.‖ Williams ―tried to snatch the gun out 

of [Bonds‘s] hand,‖ and they dropped the gun and it ―went off 

automatically‖ as it hit the ground. Bonds confronted Williams 

about grabbing the gun, and Williams responded, ―I should shoot 

this whole house, with these kids.‖ Bonds ―snapped . . . and [he] 

chased [Williams] and [he] shot three‖ while Williams ―was 

running away.‖ Bonds said Williams ―was running . . . through 

the back, like goin towards the driveway where people park,‖ and 

Williams was ―about like 10 feet away‖ when Bonds shot him. 

Bonds said he ―knew [he] could have‖ killed Williams if he had 

wanted to, but that wasn‘t what he was trying to do, he was ―just 

trying to like . . . you goin too far, Dog.‖ Bonds told detectives that 

Williams‘s threat sent him into ―a rage.‖ ―I shot him, sir,‖ Bonds 

told the detectives. ―I didn‘t mean to, I was protecting my kids.‖

¶17 Williams arrived at the hospital unresponsive and was 

pronounced dead shortly thereafter. Bonds had shot Williams in 

the arm and back. The bullet to the back pierced Williams‘s lung 

and exited through the left side of his chest.

¶18 The State charged Bonds with murder; felony discharge 

of a firearm with serious bodily injury; purchase, transfer, 

possession, or use of a firearm by a restricted person; and three 

counts of felony discharge of a firearm.

¶19 At trial, defense counsel acknowledged Bonds shot 

Williams but argued he acted in defense of his wife and children.

Bonds did not testify at trial. Instead, his counsel attempted to 

elicit evidence from the State‘s witnesses in support of Bonds‘s 

theory of imperfect self-defense.

¶20 In its case-in-chief, the State asked the arresting officer 

whether Bonds said anything at the time of his arrest about 

―trying to defend himself that night.‖ The officer responded, ―No, 

he did not.‖ On cross-examination, however, the arresting officer 

admitted that he had included none of Bonds‘s comments during 

transport in his written report, and that he remembered none of 
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Bonds‘s exact words. On re-direct examination, the prosecutor 

then confirmed with the arresting officer that Bonds‘s post-arrest 

statements about not having a gun were unsolicited, and had the 

following exchange with the witness:

Q: Did he say anything to you about defending 

himself that night?

A: No, not that I can recall.

Q: Did he say anything to you about defending 

others—his family, for example, that night?

A: Not that I can recall.

¶21 Later, defense counsel elicited testimony in support of 

Bonds‘s defense-of-others claim during his cross-examination of

the case agent who interviewed Bonds at the police station. 

Counsel asked:

Q: In fact, you stated in your police report that it 

appears that [Bonds] was trying to protect Shania 

and his two kids because he didn‘t want anything to 

happen to them or have them seeing Cheese beating 

up his wife?

A: Yes. That‘s what . . . he told me.

Q: And you put that in your report?

A: Yes.

And a few moments later in the same cross-examination, after 

refreshing the officer‘s recollection with his written report, 

defense counsel reiterated:

Q: Right. And then you . . . said, ―It was evident that 

you were only trying to protect Shania‖?

A: Based on the statements he had told me, yes.

¶22 During closing argument, the State referenced the 

evidence it had elicited from the arresting officer:

It‘s important to know that [Bonds‘s] statement[] to 

[the arresting officer] was that he was not happy 

about being arrested, but he said nothing else about 

defending himself and others.

¶23 Defense counsel responded in his closing argument, 

saying:
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[T]hey keep on saying that [Bonds] didn‘t say this or 

[Bonds] didn‘t say this, so it must be the 

opposite. . . . To imply that he has to stand up and 

just yell and scream or just say, ―This is selfdefense‖ . . . or ―This is in defense of my kids,‖ or 

anything like that . . . . He doesn‘t have to say 

anything. . . . It‘s not his burden. . . . [T]he burden 

falls . . . on the State. They have to prove it.

¶24 Defense counsel then emphasized Bonds‘s interview with 

detectives, where Bonds stated that Williams threatened to ―shoot 

this whole house and these kids‖ and then ran ―[r]ight to where

[Shania‘s mother]‘s house is.‖

¶25 On rebuttal, the prosecutor agreed that Bonds ―doesn‘t 

have to say anything‖ and . . . ―it‘s not his burden,‖ but argued 

that Bonds‘s failure to tell the officer that he had been protecting 

his family called into question the sincerity of this defense. The 

prosecutor argued:

But common sense, now you shot someone in the 

back, you have an opportunity to tell your side of 

what happened, your version of what happened. 

Common sense would be: Well, why didn‘t he say 

anything? Why didn‘t he talk about self-defense, 

defense of others?

. . .

[Y]es, it‘s not his burden and he doesn‘t have to say 

anything, but he was given the opportunity to. 

Common sense. He was given the opportunity, he 

chose not to. Defense of his kids.

¶26 At the end of the trial, the court provided the jury with 

instructions on the law, including instructions related to selfdefense and imperfect self-defense. The State and Bonds agreed to 

these instructions.

¶27 An instruction on the lesser included offense of 

manslaughter stated:

Before you can convict the Defendant, Christopher 

Bonds, of the lesser included offense of 

Manslaughter in Count 1 of the Information, you 

must find from all of the evidence and beyond a 

reasonable doubt each and every one of the 

following elements of that offense:
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1. Christopher Bonds;

2. Did recklessly cause

3. The death of another

Or

1. Christopher Bonds;

2. Commits murder (See instruction no. 30)

but is found to having acted in accordance with an 

imperfect self defense. (See instruction no. 51)

After you carefully consider all the evidence in this 

case, if you are convinced that each and every 

element has been proven, beyond a reasonable 

doubt, then you must find the defendant[] GUILTY.

On the other hand if you are not convinced that each 

and every element has been proven, beyond a 

reasonable doubt, then you must find the defendant 

NOT GUILTY.

¶28 Instruction 51, the imperfect self-defense instruction 

referenced in the manslaughter instruction, defined ―imperfect 

self-defense‖ and correctly assigned the State the burden of 

proving beyond a reasonable doubt that Bonds had not acted in 

imperfect defense of others. This instruction stated:

―Imperfect self-defense‖ is a partial defense to only 

the charge of murder. It applies when the defendant 

caused the death of another while incorrectly, but 

reasonably, believing that his conduct was legally 

justified or excused. The effect of the defense is to 

reduce the crime[] of:

 ―Murder‖ to ―Manslaughter‖[.]

The defendant is not required to prove that the 

imperfect self-defense applies. Rather, the State must 

prove beyond a reasonable doubt that the defense 

does not apply. The State has the burden of proof at 

all times. If the State has not carried this burden, the 

defendant may only be convicted of Manslaughter.
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¶29 Bonds was convicted of murder and all of the other 

charges against him, except for one count of felony discharge of a 

firearm.

5

¶30 Bonds appealed, arguing—among other things—that his 

counsel provided ineffective assistance due to his failure to object 

to two things: the manslaughter instruction incorrectly reversing

the applicable burden of proof for imperfect self-defense, and the 

State‘s violation of his Fifth Amendment right against selfincrimination when it offered evidence that he did not talk about 

defending his family during his arrest and then used that 

evidence in its closing argument. See State v. Bonds, 

2019 UT App 156, ¶ 20, 450 P.3d 120.

¶31 The court of appeals agreed with Bonds on both issues. 

Id. ¶ 65. It reversed all of Bonds‘s convictions except for 

possession of a firearm by a restricted person and remanded for a 

new trial. Id.

¶32 We granted the State‘s petition for certiorari. We exercise 

jurisdiction under Utah Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶33 ―On certiorari, this court reviews the decision of the court 

of appeals for correctness, giving no deference to its conclusions 

of law.‖ State v. Ray, 2020 UT 12, ¶ 23, 469 P.3d 871 (citation 

omitted). ―When we are presented with a claim of ineffective 

assistance of counsel, we review a lower court‘s purely factual 

findings for clear error, but [we] review the application of the law 

to the facts for correctness.‖ Id. (alteration in original) (citation 

omitted) (internal quotation marks omitted).

ANALYSIS

¶34 The court of appeals concluded that Bonds‘s counsel was 

ineffective for failing to object to the manslaughter jury 

instruction and to the State‘s ―introduction and use of evidence 

about Bonds‘s silence while being arrested.‖ State v. Bonds, 

2019 UT App 16, ¶ 65, 450 P.3d 120. We agree with the court of 

appeals that the manslaughter instruction incorrectly reversed the 

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5 In response to an unopposed defense motion, the court later 

merged the counts for murder and felony discharge of a firearm, 

resulting in the dismissal of count 2. See State v. Bonds, 

2019 UT App 156, ¶ 18.
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burden of proof applicable to imperfect self-defense and that 

defense counsel‘s failure to object to it was deficient. Whether 

counsel was deficient for failing to object to the State‘s use of 

Bonds‘s post-arrest, pre-Miranda silence is a closer call. However, 

even assuming that counsel was also deficient on this basis, we 

conclude that Bonds has not met his burden to establish prejudice.

¶35 To prove ineffective assistance of counsel, the defendant 

must establish two things: first, that trial counsel performed 

deficiently and second, that trial counsel‘s deficient performance 

prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 

687 (1984). We begin by analyzing counsel‘s performance.

I. DEFICIENT PERFORMANCE

¶36 The court of appeals found trial counsel rendered 

ineffective assistance in two respects. State v. Bonds, 

2019 UT App 156, ¶ 65. We first address the court of appeals‘ 

conclusion that counsel was ineffective for failing to object to the 

manslaughter jury instruction.

A. Jury Instructions

¶37 The court of appeals determined that trial counsel was 

deficient for failing to object to the manslaughter instruction. 

Bonds, 2019 UT App 156, ¶ 51. We agree.

¶38 As an initial matter, we conclude that the manslaughter 

instruction was legally incorrect because it misstated the burden 

of proof. Imperfect self-defense is an affirmative defense 

―available when the defendant  ̳caused the death of another . . . 

under a reasonable belief that the circumstances provided a legal 

justification or excuse for the conduct although the conduct was 

not legally justifiable or excusable under the circumstances.‘‖ 

Arriaga v. State, 2020 UT 37, ¶ 21, 469 P.3d 914 (alteration in 

original) (quoting UTAH CODE § 76-5-203(4)(a)). Unlike ―perfect‖

self-defense, if the jury finds a defendant acted in imperfect selfdefense, the defendant is not acquitted. Instead, the murder 

conviction is reduced to a manslaughter conviction. See UTAH 

CODE § 76-5-203(4)(c)(i).

¶39 Once enough evidence is presented at trial to put 

imperfect self-defense ―at issue,‖ the burden rests on the State to 

disprove this affirmative defense beyond a reasonable doubt. See

State v. Bess, 2019 UT 70, ¶ 34, 473 P.3d 157 (discussing the burden 

of proof for the affirmative defense of self-defense). But here, the 

manslaughter instruction treated imperfect self-defense as an 
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element of manslaughter that had to be affirmatively proven 

beyond a reasonable doubt. The instruction stated,

Before you can convict the Defendant, Christopher 

Bonds, of the lesser included offense of 

Manslaughter in Count 1 of the Information, you 

must find from all of the evidence and beyond a reasonable 

doubt each and every one of the following elements of that 

offense . . . . Christopher Bonds . . . commits murder 

. . . but is found to having acted in accordance with an 

imperfect self defense. (See instruction no. 51)

Supra ¶ 27 (emphases added).

¶40 Thus, the jury was instructed that to convict Bonds of 

manslaughter (rather than murder) it had to find beyond a 

reasonable doubt that he acted in imperfect self-defense. This is an 

incorrect statement of the burden of proof. The State had the 

burden to prove beyond a reasonable doubt that Bonds did not act 

in imperfect self-defense. See State v. Campos, 2013 UT App 213, 

¶ 38, 309 P.3d 1160 (―[O]nce a defendant has produced some 

evidence of imperfect self-defense, the prosecution is required to 

disprove imperfect self-defense beyond a reasonable doubt‖). 

Bonds had no burden of proof. And therefore no party had the 

burden to prove beyond a reasonable doubt that Bonds did act in 

imperfect self-defense. So the instruction was legally wrong and 

tended to shift the burden of proof onto Bonds, the only party 

who had an interest in the jury finding that he ―acted in 

accordance with an imperfect self-defense.‖

¶41 The State argues, however, that the jury instructions were 

correct when taken as a whole because the manslaughter 

instruction contained a cross-reference to another instruction that 

correctly defined imperfect self-defense and the applicable burden 

of proof. We agree, and Bonds does not contest, that the crossreferenced instruction was legally accurate.6 However, while ―we 

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6 As previously noted, the cross-referenced instruction 

correctly defined imperfect self-defense, as follows:

―Imperfect self-defense‖ is a partial defense to only 

the charge of Murder. It applies when the defendant 

caused the death of another while incorrectly, but 

reasonably, believing that his conduct was legally 

justified or excused. The effect of the defense is to 

reduce the crimes of ―Murder‖ to ―Manslaughter‖.

(continued . . .)
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look at the jury instructions in their entirety‖ when determining 

whether they contain a legal error, State v. Lambdin, 2017 UT 46, 

¶ 41, 424 P.3d 117 (citation omitted) (internal quotation marks 

omitted), one correct instruction does not necessarily correct 

another erroneous instruction, see id. ¶ 47 (―When an instruction 

completely misstates a legal standard, there is little chance that 

other instructions, read as a whole, will remedy the juror 

confusion that is likely to ensue.‖). See also State v. Garcia, 

2016 UT App 59, ¶ 16, 370 P.3d 970, aff’d in part, rev’d in part, 

2017 UT 53, 424 P.3d 171 (―[D]ueling instructions—in conflict as to 

how the jury should consider the defense—cannot satisfy

[entitlement to a correct instruction].‖).7

¶42 Here, the two instructions are contradictory and create a 

confusing internal inconsistency within the instructions as a 

whole. The accurate imperfect self-defense instruction did not 

clarify a mere ambiguity. Rather, it conflicted with the legally 

incorrect manslaughter instruction. Accordingly, we conclude that 

 

The defendant is not required to prove that the 

imperfect self-defense applies. Rather, the State must 

prove beyond a reasonable doubt that the defense 

does not apply. The State has the burden of proof at 

all times. If the State has not carried this burden, the 

defendant may only be convicted of Manslaughter.

Supra ¶ 28.

7 We cite Lambdin and Garcia in support of our conclusion that 

the correct imperfect self-defense instruction did not remedy the 

incorrect manslaughter instruction. Determining whether defense 

counsel‘s failure to object to the instruction amounted to deficient 

performance requires an additional analytical step: analyzing 

―whether correcting the error was sufficiently important under 

the circumstances that failure to do so was objectively 

unreasonable—i.e., a battle that competent counsel would have 

fought.‖ State v. Ray, 2020 UT 12, ¶ 32, 469 P.3d 871. Accordingly, 

we do not disagree with the concurrence that this opinion does 

not create a ―bright-line rule requiring an objection to any 

misleading instruction.‖ Infra ¶ 64 n.2. Rather, as we will discuss,

infra ¶¶ 43–49, we conclude that counsel was deficient here 

because under these particular circumstances, correcting the 

instruction was sufficiently important that counsel‘s failure to do 

so was objectively unreasonable.
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Opinion of the Court

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the manslaughter jury instruction was legally erroneous, and this 

error was not remedied by the presence of an accurate imperfect 

self-defense instruction.

¶43 However, just because a legal error existed in the jury 

instructions does not necessarily mean that defense counsel‘s 

failure to object to the error amounted to deficient performance. A 

defendant shoulders a heavy burden when attempting to show 

defense counsel performed deficiently because there is a ―strong 

presumption that trial counsel rendered adequate assistance and 

exercised reasonable professional judgment.‖ State v. Eyre, 

2021 UT 45, ¶ 22, 500 P.3d 776 (citation omitted). Defendants are 

entitled to ―reasonable assistance,‖ State v. Ray, 2020 UT 12, ¶ 34, 

469 P.3d 871, and there is a ―wide range of reasonable 

professional assistance,‖ Strickland, 466 U.S. at 689.8 As we have 

explained,

Defense counsel did not have a Sixth Amendment 

obligation to correct every error that might have 

occurred at trial, regardless of whether it affected 

the defendant. Counsel could pick his battles. We 

must view a decision to not object in context and 

determine whether correcting the error was 

sufficiently important under the circumstances that 

failure to do so was objectively unreasonable—i.e., a 

battle that competent counsel would have fought.

Ray, 2020 UT 12, ¶ 32.

¶44 Here, it was objectively unreasonable for counsel to agree 

to a jury instruction that incorrectly stated the burden of proof 

applicable to imperfect self-defense. The evidence left little doubt 

that Bonds shot Williams. And in light of the circumstances of the 

shooting—where Bonds shot Williams in the back from ten feet 

away as Williams ran away from Bonds—an acquittal based on 

__________________________________________________________

8 The State argues that counsel‘s performance is ―objectively 

unreasonable only when it can be said that no competent attorney 

would have acted likewise.‖ This language comes from 

Premo v. Moore, 562 U.S. 115, 124 (2011). But, as we have 

explained, ―we do not understand Moore to change the deficiency 

standard announced in Strickland.‖ State v. Scott, 2020 UT 13, ¶ 31, 

462 P.3d 350. And at oral argument, the State agreed that the

thrust of its point is that there is a wide range of reasonable 

professional assistance.
STATE v. BONDS

Opinion of the Court

14

self-defense was highly unlikely. Imperfect self-defense was

Bonds‘s only defense, and his only hope of avoiding a murder 

conviction. And it was unreasonable for defense counsel to accede 

to a jury instruction that incorrectly shifted the burden of proof 

for that defense onto Bonds. Accordingly, we must disagree with 

the concurrence‘s conclusion that counsel‘s decision not to object 

to the manslaughter instruction fell within the wide range of 

reasonable professional assistance. Infra ¶ 64 n.2. To the contrary, 

―correcting the error was sufficiently important under the 

circumstances that failure to do so was objectively unreasonable.‖ 

Ray, 2020 UT 12, ¶ 32. And we agree with the court of appeals that 

defense counsel performed deficiently in this regard.

¶45 The State notes that correctly instructing juries on

imperfect self-defense has proven challenging in numerous cases.

See, e.g., Campos, 2013 UT App 213, ¶¶ 37–45 (holding that defense 

counsel‘s ―failure to object to [a] verdict form fell below an 

objective standard of reasonableness‖ where the verdict form 

―require[d] an affirmative defense [of imperfect self-defense] to be 

established beyond a reasonable doubt,‖ although a jury 

instruction correctly described imperfect self-defense); State v. Lee, 

2014 UT App 4, ¶¶ 26–27, 318 P.3d 1164 (concluding that defense 

counsel ―performed deficiently in failing to object‖ to a jury 

instruction on imperfect self-defense that ―improperly placed the 

burden upon [the defendant] to prove his affirmative defense 

beyond a reasonable doubt,‖ but holding this did not prejudice 

the defendant‘s conviction); Garcia, 2016 UT App 59, ¶¶ 14–16, 

(concluding that ―the jury instructions regarding imperfect selfdefense and attempted manslaughter were in direct conflict,‖ and 

though two instructions correctly stated the law, that did not 

―remedy or cure‖ the other erroneous instructions). And it asks us 

to give some guidance in this area. We do so below, but we limit 

ourselves to the instructions before us and do not intend to 

prescribe the only way that a trial court could properly instruct a 

jury on imperfect self-defense.

¶46 The heart of the problem here is that when imperfect selfdefense is listed as an affirmative element of the reduced offense 

of manslaughter, the instruction incorrectly reverses the burden of 

proof. See supra ¶ 27. See also, e.g., Lee, 2014 UT App 4, ¶ 27 

(explaining that when ―the jury was instructed . . . to find that all 

of the listed elements were proven beyond a reasonable doubt, 

including that Lee acted under a reasonable belief that his actions 

were legally justifiable,‖ the ―instruction improperly placed the 

burden upon Lee to prove his affirmative defense beyond a 
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Opinion of the Court

15

reasonable doubt‖); Garcia, 2016 UT App 59, ¶ 14 (noting that the 

imperfect self-defense instruction correctly stated the burden but 

an additional manslaughter instruction ―incorrectly stated that the 

jury should convict Garcia of attempted manslaughter—thus 

giving Garcia the benefit of an imperfect self-defense finding—if 

the jury concluded that imperfect self-defense did not apply‖).

¶47 The Model Utah Jury Instructions (MUJI) Committee has 

noted this very problem:

Instructing the jury on imperfect self-defense has 

proved to be problematic because many 

practitioners have tried to include the defense as an 

element of either or both of the greater crime and the 

reduced crime. The inevitable result is that the 

elements instruction on the reduced crime misstates 

the burden of proof on the defense as it applies to 

that reduced crime. See, e.g., State v. Lee, 

2014 UT App 4, 318 P.3d 1164.

Model Utah Jury Instructions, CR1450 Practitioner’s Note: 

Explanation Concerning Imperfect Self Defense, (last revised 2019), 

available at https://www.utcourts.gov/resources/muji/inc_list.as

p?action=showRule&id=42.

¶48 Here, the manslaughter instruction would have been 

legally correct if it had stated:

Before you can convict the Defendant, Christopher 

Bonds, of the lesser included offense of 

Manslaughter in Count 1 of the Information, you 

must find from all of the evidence and beyond a 

reasonable doubt that:

. . . .

1. Christopher Bonds;

2. Committed murder (See instruction no. 30)

AND

3. The State has failed to prove beyond a reasonable 

doubt that Bonds did not act in imperfect selfdefense. (See instruction no. 51)

¶49 Again, we do not hold that this is the only way to 

correctly instruct on imperfect self-defense. But when imperfect 

self-defense is at issue, the jury instructions as a whole must make 

clear that, in order to convict the defendant of murder, the jury 
STATE v. BONDS

Opinion of the Court

16

must find that the prosecution proved beyond a reasonable doubt 

that the defendant committed murder9 and that the defendant did 

not act in imperfect self-defense. And to convict the defendant of 

manslaughter, the jury must find that the prosecution proved the 

defendant committed murder but did not prove that the defendant 

did not act in imperfect self-defense. Neither party has the burden 

to prove that the defendant did act in imperfect self-defense, and 

jury instructions should steer clear of such an implication.

B. The State’s Use of Bonds’s Post-Arrest, Pre-Miranda Silence

¶50 The court of appeals also determined that trial counsel 

acted deficiently when he did not object to 1) the State‘s elicitation 

from the arresting officer that Bonds did not mention at the time 

of his arrest that the reason he shot Williams was to defend his 

family, and 2) the State‘s argument in closing that this showed 

Bonds had not genuinely acted in defense of his family because if 

he had, it was ―common sense‖ that he would have explained this 

to the officer. See Bonds, 2019 UT App 156, ¶¶ 17, 55.

¶51 The United States Supreme Court has not specifically

addressed whether a prosecutor is constitutionally prohibited 

from commenting on a defendant‘s silence after arrest but before 

law enforcement‘s provision of Miranda warnings.10 We also have 

__________________________________________________________

9 We do not include a murder instruction here, as Bonds has 

raised no issue regarding the murder instruction given to the jury 

at his trial.

10 The Fifth Amendment to the U.S. Constitution guarantees

that no person ―shall be compelled in any criminal case to be a 

witness against himself.‖ The Supreme Court has made clear that 

it is a violation of the Fifth Amendment for the prosecution to use 

against a defendant the defendant‘s decision to not testify at trial, 

Griffin v. California, 380 U.S. 609, 613–14 (1965), and a defendant‘s 

silence after arrest and after law enforcement has administered 

the Miranda warnings, Doyle v. Ohio, 426 U.S. 610, 611 (1976). The

Court has reasoned that once a person has been told they have

―the right to remain silent,‖ it is unconstitutional to then use their 

silence against them. Id. at 617–18. But the Supreme Court has also 

explained that ―impeachment by use of prearrest silence does not 

violate the Fourteenth Amendment.‖ Jenkins v. Anderson, 

447 U.S. 231, 240 (1980) (emphasis added). However, the Court 

has not conducted this same analysis with respect to the 

prosecution‘s use of a defendant‘s silence during the period after 

(continued . . .)
Cite as: 2022 UT 30

Opinion of the Court

17

not spoken to this issue. Indeed, it is not directly presented here

either, as the issue before us arises within the framework of 

ineffective assistance of counsel. So instead of being directly 

presented with this issue, we are asked whether defense counsel 

was deficient in not objecting when the State elicited evidence of 

Bonds‘s post-arrest, pre-Miranda silence and commented on it 

during closing arguments.

¶52 The State argues that counsel‘s decision to not object was 

not unreasonable, because counsel could have believed the 

objection would fail.11 And the State suggests various ways in 

 

arrest but before the Miranda warnings, and where the defendant 

does not testify at trial. But see Fletcher v. Weir, 455 U.S. 603, 607 

(1982) (―In the absence of the sort of affirmative assurances 

embodied in the Miranda warnings, we do not believe that it 

violates due process of law for a State to permit cross-examination 

as to postarrest silence when a defendant chooses to take the stand.‖

(emphasis added)). The federal courts that have done so are split. 

See United States v. Frazier, 408 F.3d 1102, 1110–11 (8th Cir. 2005) 

(noting a ―conflict of authority on the question,‖ and holding in 

that case that the defendant‘s rights were not violated because 

―there was no governmental action at that point inducing his 

silence,‖ but also noting that ―[w]e do not decide today whether 

compulsion may exist under any other postarrest, pre-Miranda

circumstances‖); United States v. Rivera, 944 F.2d 1563, 1568 (11th 

Cir. 1991) (―The government may comment on a defendant‘s 

silence when it occurs after arrest, but before Miranda warnings 

are given.‖). But see United States v. Hernandez, 948 F.2d 316, 322-24

(7th Cir. 1991) (concluding that a prosecutor‘s commentary on a 

defendant‘s post-arrest, pre-Miranda silence violated the 

defendant‘s Fifth Amendment privilege); United States v. VelardeGomez, 269 F.3d 1023, 1030 (9th Cir. 2001) (―[T]he government 

may not comment on a defendant‘s post-arrest, pre-Miranda

silence in its case-in-chief because such comments would act [] as 

an impermissible penalty on the exercise of the . . . right to remain 

silent. We conclude[] that regardless [of] whether the Miranda

warnings [are] actually given, comment on the defendant‘s 

exercise of his right to remain silent [is] unconstitutional.‖)

(second, third, sixth, and seventh alterations in original) (internal

quotation marks omitted).

11 The State cites Brecht v. Abrahamson, 507 U.S. 619 (1993), 

which states that ―the Constitution does not prohibit the use for 

(continued . . .)
STATE v. BONDS

Opinion of the Court

18

which counsel‘s decision may have been strategic. But ultimately, 

we need not resolve whether counsel was deficient in this respect, 

because even assuming he was, Bonds has failed to show

prejudice.

II. PREJUDICE

¶53 ―An error by counsel, even if professionally 

unreasonable, does not warrant setting aside the judgment of a 

criminal proceeding if the error had no effect on the judgment.‖ 

State v. Scott, 2020 UT 13, ¶ 43, 462 P.3d 350 (quoting Strickland, 

466 U.S. at 691). To establish prejudice, ―[t]he defendant must

show that there is a reasonable probability that, but for counsel‘s 

unprofessional errors, the result of the proceeding would have 

been different. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.‖ Strickland, 466 U.S. at

694.12

¶54 We ultimately conclude that if these errors had not 

occurred—in other words, if the jury instructions had correctly 

and consistently stated the burden of proof applicable to 

imperfect self-defense and the State had not elicited testimony 

about and made reference to Bonds‘s silence at the time of his 

arrest—there is no reasonable probability that the outcome of 

Bonds‘s trial would have been different. Bonds‘s argument is that, 

absent these errors, there is a reasonable probability that the jury 

would have convicted him of manslaughter rather than murder 

based on a finding that the State had not disproven that he acted 

in imperfect defense of his family. But here, the jury was correctly 

instructed that imperfect self-defense ―applies when the 

 

impeachment purposes of a defendant's silence prior to arrest, or 

after arrest if no Miranda warnings are given.‖ Id. at 628 (emphasis 

added). However, Brecht says this in the context of impeachment, 

and cites to Fletcher v. Weir, 455 U.S. 603 (1982), which speaks 

specifically in terms of impeachment when a defendant testifies at 

trial. Id. at 606–07. And Bonds did not testify at his trial.

12 In its analysis, the court of appeals expounded upon the 

meaning of a ―reasonable probability‖ as being similar to a 

―significant possibility.‖ Bonds, 2019 UT App 156, at ¶ 56. But we 

endeavor to hew closely to the words used by the Supreme Court 

in Strickland. So we adhere to the ―reasonable probability‖

standard and the Supreme Court‘s analysis and application of this 

phrase.
Cite as: 2022 UT 30

Opinion of the Court

19

defendant caused the death of another while incorrectly, but 

reasonably, believing that his conduct was legally justified or 

excused.‖

¶55 And there is no reasonable probability that under the 

facts here, a reasonable jury could have found that the State failed 

to disprove that Bonds reasonably believed he was legally justified 

in shooting Williams. When Bonds fired at Williams, he had a gun 

and Williams did not. He shot Williams in the back three times 

from about ten feet away. He admitted that Williams was 

―running away‖ from him, and that he ―chased‖ Williams.

¶56 The only evidence supporting Bonds‘s theory of the case 

was Bonds‘s own statements to detectives that Williams had said 

he would ―shoot this whole house and these kids,‖ and that he 

shot Williams to protect his family. Bonds also highlights that, as 

Williams ran away, he ran in the direction of Bonds‘s mother-inlaw‘s apartment, where Bonds‘s children had been staying. And 

we note that the prosecutor did not dispute that Williams ―ran in 

[the] direction‖ of Shania‘s mother‘s house. Bonds argues that this 

could have caused the jury to conclude that Bonds reasonably 

feared Williams was a danger to his children. There is some 

dispute about whether Bonds thought his children were still at his 

mother-in-law‘s apartment at the time of the shooting, because 

Shania had already taken them back to Bonds‘s apartment. But 

even assuming this fact in Bonds‘s favor, there is no evidence 

tending to show that Bonds could have had a reasonable belief 

that Williams was an imminent danger to his children as Williams 

ran, unarmed, in their general direction.

¶57 Indeed, there was no evidence at trial that Bonds himself 

held such a belief, even subjectively. Bonds described his actions 

to detectives not as attempting to stop Williams before Williams 

reached his children, but as anger at and punishment of Williams 

based on his incendiary comments about Bonds‘s family. In his 

interview, Bonds alleged

And he said some crazy shit, whatever, like I‘ll shoot 

this whole house and these kids, whatever, some 

shit and I‘m like you say what, like you gonna be 

fucked up and . . . that‘s when I shot. That shit put 

me in a rage, like . . . my kids in this, I don‘t give a 

fuck who you is, like my kids . . . . Nobody gonna 

hurt my kids. I coulda killed him if I wanted to. But I 

wasn‘t doing that. Just showing him you‘re doing 

too much, Man. Going too far, dog.
STATE v. BONDS

Opinion of the Court

20

¶58 In light of these facts, even if the manslaughter 

instruction had been correct and the State made no mention of 

Bonds‘s silence at the time of his arrest, we cannot conclude that 

there is a reasonable probability that the jury would have 

convicted him of manslaughter rather than murder or that the 

outcome of the trial would have otherwise been different.

CONCLUSION

¶59 We affirm the court of appeals‘ holding that Bonds‘s trial 

counsel performed deficiently in failing to object to a jury 

instruction that misallocated the burden of proof as to imperfect 

self-defense. But even assuming counsel was also deficient for not 

objecting to the State‘s use of Bonds‘s post-arrest, pre-Miranda

silence against Bonds, we conclude that Bonds has not carried his 

burden of proving that had these errors not occurred, there was a 

reasonable probability that the outcome of the trial would have 

been different. Accordingly, Bonds‘s claim of ineffective 

assistance of counsel fails. We reverse and reinstate his 

convictions.

ASSOCIATE CHIEF JUSTICE LEE, concurring in part and 

concurring in the judgment:

¶60 I concur in the court‘s decision to reverse the court of 

appeals and reinstate the convictions at issue. And I likewise 

concur in the bulk of the majority opinion. I write separately, 

however, because I disagree with the court‘s conclusion that trial 

counsel was deficient in failing to object to the jury instructions on 

imperfect self-defense.1 See supra Part I.A.

¶61 Admittedly, instruction number 35 was not a model of 

clarity. If read in isolation, this instruction could have been 

interpreted to suggest that Bonds bore a burden of proof on 

imperfect self-defense. See supra ¶ 40. In light of the potential for 

confusion, I have no doubt that many reasonable defense lawyers 

would have objected to this instruction.

__________________________________________________________

1 The majority‘s contrary conclusion is unnecessary to its 

judgment in any event given that the court goes on to conclude 

that there is no reasonable likelihood that the lack of an objection 

affected the jury‘s verdict. See supra Part II. For that reason I 

concur in the judgment of the court despite my disagreement with 

the analysis in Part I.A. of the opinion.
Cite as: 2022 UT 30

LEE, A.C.J., concurring in part and concurring in the judgment

21

¶62 But that is not the question presented for our decision. 

We do not read jury instructions in isolation. And under Strickland

v. Washington, 466 U.S. 668 (1984), we do not hold trial counsel to 

a standard of ―best practice,‖ or require that they object to any 

instruction that is potentially confusing or even incorrect. See State 

v. Ray, 2020 UT 12, ¶ 32, 469 P.3d 871. The governing standard 

―indulge[s] a strong presumption that counsel‘s conduct falls 

within the wide range of reasonable professional assistance.‖ Id. 

¶ 34 (quoting Strickland, 466 U.S. at 689). And that presumption

leaves room for counsel to ―pick his battles‖ without an obligation 

to ―correct every error that might have occurred at trial.‖ Id. ¶ 32.

¶63 I would resolve the question addressed in Part I.A. of the 

majority opinion under these standards. I would hold that 

Bonds‘s defense counsel was ―pick[ing] his battles‖ in forgoing an 

objection to instruction 35. And I would conclude that the 

decision to do so fell within the ―wide range of reasonable 

professional assistance‖ that Bonds was entitled to under 

Strickland.

¶64 Instruction 35 created a potential for confusion—in a 

requirement that the jury find ―beyond a reasonable doubt each 

and every one of the‖ listed ―elements‖ of the offense of 

manslaughter, with a list that included a determination that 

Bonds ―acted in accordance with an imperfect self-defense.‖ In 

context, that reference could lead to confusion as to who bore the 

burden of proof on imperfect self-defense. But instruction 35 did 

not expressly assign a burden of proof to the defense. And the 

instructions elsewhere eliminated any possible confusion. 

Instruction 35 included an express cross-reference to instruction 

51. And instruction 51 cured any potential confusion by speaking 

expressly—and quite correctly—to the burden of proof on 

imperfect self-defense. See supra ¶ 41 (conceding this point).2

__________________________________________________________

2 The majority cites State v. Lambdin, 2017 UT 46, ¶ 47, 

424 P.3d 117, and State v. Garcia, 2016 UT App 59, 

370 P.3d 970, aff’d in part, rev’d in part, 2017 UT 53, 424 P.3d 171, in 

support of its conclusion that instruction 51 did not adequately 

―correct‖ the error it finds in instruction 35. Supra ¶ 41. But these 

cases are unhelpful to the majority for two reasons. First, 

instruction 35 does not contain the kind of errors highlighted in 

these cases—a direct ―misstate[ment]‖ of the operative ―legal 

standard,‖ as in Lambdin, 2017 UT 46, ¶ 47, or a ―dueling 

(continued . . .)
STATE v. BONDS

LEE, A.C.J., concurring in part and in the judgment

22

¶65 The jury instructions at issue were not perfect. But Bonds 

had no right to an ideal defense. See Strickland, 466 U.S. at 689. He 

had a right to a defense that fell within the ―wide range of 

reasonable professional assistance.‖ Id. A lawyer acting within 

that wide range could reasonably decide to forgo an objection to 

the potential confusion in instruction 35 in light of the explicit 

clarification provided in instruction 51.

 

instruction[]‖ that openly ―conflict[s]‖ with another, as in Garcia, 

2016 UT App 59, ¶ 16. Instruction 35, on its own, is confusing; but 

it doesn‘t directly misstate the law, or expressly assign the burden 

of proof on imperfect self-defense to Bonds. And that 

distinguishes this case from those cited by the majority.

The cited cases are also distinguishable in a second way: 

Neither of them is rooted in a governing standard for a claim for 

ineffective assistance. The Lambdin case arose in the context of a 

preserved objection to a jury instruction. See 2017 UT 46, ¶ 10. So 

the Lambdin analysis is unhelpful to our resolution of a case 

arising under a claim for ineffective assistance. The cited Garcia

opinion does arise in the context of a claim for ineffective 

assistance. See 2017 UT 53, ¶ 48. But the majority is relying on an 

opinion of the Utah Court of Appeals, whose analysis of the claim 

for ineffective assistance was reversed by this court on certiorari.

The majority notes that the cited language in Garcia is from a 

portion of the court of appeals‘ opinion dealing separately with 

the question whether a jury instruction was accurate—as an 

antecedent to the court‘s analysis of a claim for ineffective 

assistance of counsel. See supra ¶ 41 n.5. And it emphasizes that its 

own approach similarly bifurcates the threshold question of 

whether the instructions were in error from the ultimate question 

of whether a decision to forgo an objection fell short of the 

standard of minimal competence guaranteed to Bonds. Id.

I take the point as far as it goes. But without the support of the 

cited authority, the majority is left with a narrow, fact-intensive 

basis for its holding. The court is not establishing a bright-line rule 

requiring an objection to any misleading instruction. It is simply 

concluding that it believes that ―correcting‖ the error at issue here 

―was sufficiently important under the circumstances that failure 

to do so was objectively unreasonable.‖ Supra ¶ 44 (citation 

omitted). We disagree on that ultimate point. But our point of 

disagreement is narrow and fact-intensive.
Cite as: 2022 UT 30

LEE, A.C.J., concurring in part and concurring in the judgment

23

¶66 I respectfully concur in the court‘s judgment on that 

basis.