TurThis opinion is subject to revision before final

publication in the Pacific Reporter

2014 UT 19

IN THE

SUPREME COURT OF THE STATE OF UTAH

TABERONE DAVE HONIE,

Petitioner and Appellant,

v.

STATE OF UTAH,

Respondent and Appellee.

No. 20110620

Filed May 30, 2014

Fifth District, Cedar City

The Honorable G. Michael Westfall

No. 030500157

Attorneys:

Jon M. Sands, Therese M. Day, David A. Christensen, 

Salt Lake City, for petitioner and appellant

Thomas B. Brunker, Salt Lake City, for respondent and appellee

JUSTICE PARRISH authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,

JUSTICE DURHAM, and JUSTICE LEE joined.

JUSTICE PARRISH, opinion of the Court:

INTRODUCTION

¶1 In May 1999, Petitioner Taberone Dave Honie was

convicted of aggravated murder. Mr. Honie waived his right to a

jury at sentencing and was subsequently sentenced to death by the

trial judge. Following an unsuccessful direct appeal, Mr. Honie

sought postconviction relief pursuant to the Utah Post Conviction

Remedies Act (PCRA). This case comes before the court on appeal

from a grant of summary judgment denying Mr. Honie

postconviction relief on the basis of ineffective assistance of counsel.

Mr. Honie also brought a motion under rule 60(b) of the Utah Rules

of Civil Procedure to set aside the postconviction court’s final

judgment. That motion was also denied and Mr. Honie appealed. 

We have consolidated the appeals for review and decision.
HONIE v. STATE

Opinion of the Court

¶2 On appeal, Mr. Honie argues that the postconviction court

erred when it granted the State’s motions for summary judgment. 

He also claims that the postconviction court abused its discretion in

denying his rule 60(b) motion. We hold that Mr. Honie has failed to

raise a genuine issue of material fact as to the first set of claims and

that the district court did not abuse its discretion in regard to its rule

60(b) denial. We accordingly affirm the postconviction court’s grant

of summary judgment and denial of rule 60(b) relief.

BACKGROUND

¶3 Mr. Honie was convicted of aggravated murder and

sentenced to death. This court affirmed his conviction and sentence

on direct appeal. State v. Honie, 2002 UT 4, 57 P.3d 977 (Honie I). 

Mr. Honie subsequently filed a petition for postconviction relief,

alleging ineffective assistance of trial counsel. Although we

previously detailed the facts of Mr. Honie’s crime in Honie I, we

briefly restate the relevant facts here.

I. THE MURDER OF CLAUDIA BENN

¶4 On July 9, 1998, Mr. Honie murdered Claudia Benn. At

approximately 8:00 p.m. on the evening of the murder, Mr. Honie

telephonedCarolPikyavit, the victim’s daughter, asking herto come

see him at the house where he was staying. Carol refused, telling

Mr. Honie she needed to go to work. Mr. Honie became upset and

threatened that if Carol did not come to meet him, he would kill her

mother and her nieces.

¶5 Between his first telephone call at 8:00 p.m. and the time

Carol left for work, Mr. Honie telephoned twice more. Carol and her

sister, Benita, left for work at approximately 10:30 p.m., leaving their

three children with Claudia.1 The children were dressed and ready

for bed when Carol and Benita left.

¶6 Around 11:20 p.m., a cab driver picked up Mr. Honie.

Although the cabdriver could tell that Mr. Honie was intoxicated,

Mr. Honie was still able to give him directions to the victim’s

neighborhood.

¶7 At approximately 12:20 a.m., several police officers arrived

at the victim’s home in response to a neighbor’s 911 call. Upon

arriving at the victim’s home, the officers noticed that a sliding glass

1 One of the children, T.H., is the daughter of Carol and

Mr. Honie. The other two children, D.R. and T.R., belong to Benita.

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door had been broken, permitting entry to the home. The officers

ordered the occupants of the house to exit and discovered Mr. Honie

leaving the home through the garage. An officer commanded

Mr. Honie to put his hands up and ordered him to the ground. 

Mr. Honie complied. Upon seeing blood on Mr. Honie’s arms from

his fingertips to his elbows, the officer asked Mr. Honie where he got

the blood. Mr. Honie responded, “I stabbed her. I killed her with a

knife.”

¶8 After arresting Mr. Honie, the officers inspected the

victim’s home. Inside, they discovered the victim’s partially nude

body lying face down on the living room floor. A large bloodstained kitchen knife lay near her head.

¶9 The victim’s three grandchildren were also found inside

the home. Two of the children had some blood on them, and one

child, D.R., “was covered, literally, head to toe with blood.” In

addition, D.R. was found only wearing a t-shirt; she was not wearing

the underwear she had on when her mother left for work. D.R.’s

underwear was neverrecovered from the scene of the murder. D.R.

was given new underwear the night of the murder, but the social

worker taking care of D.R. later noticed blood on them. The blood

was later determined to be D.R.’s. Upon examining D.R., a physician at Primary Children’s Medical Center determined that the

bleeding was caused by abrasions in her genital area that were

consistent with rubbing or fondling. The physician also estimated

that D.R.’s injury was inflicted less than twenty-four hours before

her examination.

¶10 The postmortem examination of the victim revealed that

Mr. Honie brutally slit the victim’s throat, cutting her neck from ear

to ear. Four “start marks” on the victim’s neck ran together into a

deep cut that ran from the front of her neck through to her backbone. 

In addition to the neck wounds, Mr. Honie mutilated the victim’s

lower body, stabbing her multiple times in her genitalia.

¶11 After his arrest, Mr. Honie was taken to the Iron County

Jail where Officer Lynn Davis interviewed and photographed him.

Officer Davis interrogated Mr. Honie three separate times on the

morning following the murder. Over the course of his interviews

with Officer Davis, Mr. Honie admitted he had argued with the

victim priorto breaking into her home by smashing the sliding glass

door with a rock. Mr. Honie also told Officer Davis that he attempted to penetrate the victim’s anus with his penis, but decided

not to after realizing the victim had died. In each of the interviews,

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HONIE v. STATE

Opinion of the Court

however, Mr. Honie expressed remorse for killing the victim, stating

repeatedly that Claudia was not meant to die.

II. MR. HONIE’S TRIAL, CONVICTION, 

AND DEATH SENTENCE 

¶12 The State charged Mr. Honie with aggravated murder in

violation of Utah Code section 76-5-202. At trial, the State presented

evidence of numerous aggravating factors,2

including the evidence

of D.R.’s condition the night of the murder. The State argued that

Mr. Honie had molested D.R. on the night of the murder and urged

the jury to find aggravated sexual abuse of a child as an aggravating

factor.

¶13 Mr. Honie’s counsel openly admitted his client’s guilt,

stating, “I know in this case there is no question of Mr. Honie’s guilt. 

You are going to find him guilty. The question in this case is going

to be one of punishment.” Thus, rather than contesting Mr. Honie’s

guilt, trial counsel chose to focus on the sentencing phase of the trial

by highlighting Mr. Honie’s expressions of remorse and attempting

to counter the aggravating factors proffered by the State.

¶14 The jury convicted Mr. Honie of aggravated murder,

finding five aggravating factors: (1) object rape, (2) forcible sodomy,

(3) aggravated sexual assault, (4) burglary, and (5) aggravated

burglary. The jury, however, could not reach unanimity on a sixth

aggravating factor: aggravated child sexual abuse.

¶15 Mr. Honie waived his right to a jury at the sentencing

phase. Following an extensive colloquy with the judge priorto trial,

Mr. Honie signed a jury waiverindicating that he had discussed the

waiver and its ramifications with trial counsel. In the colloquy,

Mr. Honie stated he understood that he was waiving his right to be

sentenced by a twelve-person jury and that his sentence would

instead be determined by a single judge. Mr. Honie also stated that

he waived the jury voluntarily.

¶16 During the sentencing phase, trial counsel chose to

highlight Mr. Honie’s family and personal background, as well as

Mr. Honie’s statements of remorse to the police following his arrest.

2 The State arguedthatMr. Honie committed aggravated murder

because he killed Claudia while also committing rape, object rape,

forcible sodomy, sexual abuse of a child, aggravated sexual abuse of

a child, aggravated sexual assault, aggravated burglary, and/or

burglary. Honie I, 2002 UT 4, ¶ 46, 57 P.3d 977.

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Dr. Nancy Cohn, a forensic psychologist, testified on Mr. Honie’s

behalf. In addition to proffering testimony concerning Mr. Honie’s

personal history, including his mental and physical condition,

Dr. Cohn testified as to Mr. Honie’s remorse. Specifically, Dr. Cohn

indicated that Mr. Honie began crying when he admitted to herthat

he molested D.R. the night of the murder.

¶17 The trial judge found that the aggravating circumstances

outweighed the mitigating circumstances and sentenced Mr. Honie

to death in accordance with section 76-3-207 of the Utah Code. The

judge specifically found four aggravating factors: (1) that the

murder involved object rape, (2) that the murder was committed in

the course of an aggravated sexual assault, (3) that Mr. Honie was

engaged in committing aggravated burglary at the time of the

murder, and (4) that during the murder Mr. Honie also engaged in 

aggravated sexual abuse of D.R. The court also noted Mr. Honie’s

criminal history, including a prior drunken assault on Carol, and the

impact Mr. Honie’s crime had on the victim’s family. In addition,

the court considered the mitigation evidence offered by Mr. Honie,

including evidence of his intoxication at the time of the murder, his

personal background, his relative youth at the time of the crime, and

Mr. Honie’s expressed remorse for his conduct. Ultimately, the trial

judge determined, beyond a reasonable doubt,thatthedeathpenalty

was appropriate and so sentenced Mr. Honie. We affirmed Mr.

Honie’s sentence on direct appeal, Honie I, 2002 UT 4, 57 P.3d 977,

and the U.S. Supreme Court denied certiorari, Honie v. Utah, 537 U.S.

863 (2002).

III. MR. HONIE’S POSTCONVICTION PROCEEDINGS

¶18 Mr. Honie began his postconviction appeals process in

February 2003, raising a variety of ineffective assistance of counsel

claims.3In response to Mr. Honie’s December 2003 Amended

Petition for Post Conviction Relief, the State filed a motion to dismiss

or for summary judgment. Most of Mr. Honie’s claims were

dismissed when the postconviction court granted, in part, the State’s

motion for partial summary judgment. The postconviction court

also denied part of the State’s motion based on an affidavit submitted by a defense mitigation consultant, which asserted that trial

3

In his first petition for postconviction relief, Mr. Honie brought

nine claims. In his amended petition for postconviction relief,

Mr. Honie brought sixty-seven claims. We will address only those

claims raised on appeal. See infra ¶ 24.

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counsel’s mitigation investigation had been inadequate. Because the

Stateprofferedno evidence to contradict the consultant’s assessment

of trial counsel’s investigation, the postconviction court held that

Mr. Honie had established a factual dispute sufficient to survive

summary judgment as to the adequacy of trial counsel’s mitigation

investigation.

¶19 Following the postconviction court’s ruling, the State

moved for discovery on Mr. Honie’s surviving claims. Mr. Honie’s

postconviction counsel subsequently filed a motion requesting

additional funds to complete discovery. In November 2006, the

postconviction court denied Mr. Honie’s request for additional

funds, holding in part that Mr. Honie had already received the

maximum amount of funding allowed for postconviction investigation underthe PCRA. In addition, the court held that it did not have

jurisdiction to consider Mr. Honie’s motion for additional funding

because he had not exhausted his administrative remedies with the

Utah State Division of Finance.

¶20 In June 2007, the State filed a second motion for summary

judgment, supported by an affidavit from Mr. Honie’s trial counsel

in which he testified as to the mitigation investigation he had

conducted prior to Mr. Honie’s trial. Mr. Honie subsequently filed

a motion to stay the proceedings, arguing that he could not oppose

the State’s motion without additional funding. Extensive litigation

ensued, in which Mr. Honie argued that he needed additional funds

to hire experts to testify as to his state of intoxication at the time of

the murder, as well as to conduct a more complete investigation into

potential mitigating factors in his background.

¶21 In the midst of Mr. Honie’s funding dispute, the Legislature amended the PCRA, granting courts authority to exceed the

statutory $20,000 limit on litigation costs in death penalty

postconviction cases upon a showing of “good cause.” Utah Code

§ 78B-9-202(3)(c).4 The postconviction court determined that the

revised PCRA applied retroactively to Mr. Honie’s case, thereby

allowing Mr. Honie to petition for additional funding.

¶22 In March 2010, the postconviction court again denied

Mr. Honie’s request for more funds. The court reasoned that

Mr. Honie could not demonstrate good cause because he was unable

4 Prior to 2008, funding for litigation costs in death penalty

postconviction cases had an absolute cap of $20,000. Utah Code

§ 78-35a-202(2)(c) ( 2004); UTAH ADMIN. CODE r. 25-14-5 (2004).

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to show that additional funds were likely to lead to the development

of evidence that would support postconviction relief. Following its

denial of Mr. Honie’s request for additional funds, the

postconviction court considered the State’s second motion for

summary judgment. The court determined that, with the addition

of trial counsel’s affidavit testimony, the State was entitled to

judgment as a matter of law and granted the State’s motion.

¶23 Two months after he filed a notice of appeal in his

postconviction proceedings, Mr. Honie filed a rule 60(b)(6) motion

with the postconviction court, seeking relief from the court’s

summary judgment order on the basis of ineffective assistance of his

postconviction counsel. In his rule 60(b) motion, Mr. Honie argued

that his postconviction counsel had been rendered ineffective as a

result of the court’s failure to grant additional funding, which would

have allowed counsel to further pursue Mr. Honie’s ineffective

assistance of trial counsel claims. The postconviction court denied

Mr. Honie’s motion,5 holding that lack of funding did not render

Mr. Honie’s postconviction counsel ineffective.

¶24 Mr. Honie timely appealed the postconvictioncourt’s 60(b)

ruling, and we consolidated his postconviction and rule 60(b)

appeals. In his consolidated appeal, Mr. Honie raises six separate

claims of ineffective assistance of counsel: (1) trial counsel improperly decided on a concession strategy too early, which caused him to

inadequately investigate potential defenses or mitigating factors;

(2) trial counsel failed to investigate or pursue a voluntary intoxication defense to the aggravated murder charge; (3) trial counsel failed

to object to the destruction of evidence demonstrating Mr. Honie’s

intoxication on the night of the murder; (4) trial counsel failed to

request suppression of Mr. Honie’s inculpatory statements to the

police; (5) during the penalty phase of trial, trial counsel introduced

Mr. Honie’s inculpatory statement to Dr. Cohn in which Mr. Honie

5 The postconviction court exercised jurisdiction in accordance

with our decision in White v. State, 795 P.2d 648, 650 (Utah 1990). In

White, we held that although filing a notice of appeal divests a

district court of jurisdiction to make any additional rulings in a case,

the district court “has jurisdiction to consider a rule 60(b) motion

after an appeal has been filed and also has power to deny it. But if

the motion has merit, the trial court must so advise the appellate

court, and the moving party may then request a remand.” Id. at

649–50.

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admitted to molesting D.R.; and (6) trial counsel failed to properly

advise Mr. Honie about his right to have a jury determine his

sentence. In addition to his ineffective assistance of counsel claims,

Mr.Honie argues that the postconviction court erred when it refused

to approve additional funds that would have allowed him to further

develop his claims of ineffective assistance of counsel. Finally,

Mr. Honie argues that the postconviction court erred when it denied

his motion for relief pursuant to rule 60(b)(6) of the Utah Rules of

Civil Procedure. 

¶25 The State counters that Mr. Honie’s trial counsel was not

ineffective underthe U.S. Supreme Court’s Strickland jurisprudence. 

And the State argues that the postconviction court did not err when

it denied Mr. Honie additional funds because Mr. Honie failed to

show that additional funds were likely to develop evidence in

support of his ineffective assistance of counsel claims. Finally, the

State argues that the postconviction court properly denied

Mr. Honie’s rule 60(b) motion.

¶26 We hold that Mr. Honie has failed to raise a genuine issue

of material fact as to his ineffective assistance of counsel claims and

that the postconviction court was correct in denying him additional

funds. In addition, we hold that the postconviction court did not err

when it denied Mr. Honie’s rule 60(b) motion. Accordingly, we

affirm the postconviction court’s grant of summary judgment. 

STANDARD OF REVIEW

¶27 Under the PCRA, “[t]he petitioner has the burden of

pleading and proving by a preponderance of the evidence the facts

necessary to entitle the petitioner to relief.” UTAH CODE § 78B-9-

105(1). As stated above, Mr. Honie challenges three of the

postconviction court’s rulings: (1) the court’s dismissal of his claims

of ineffective assistance of counsel, (2) the court’s denial of his

motion for additional funding under the PCRA, and (3) the court’s

denial of his rule 60(b) motion. We apply the following standards

of review to each of these claims.

A. Ineffective Assistance of Counsel Claim

¶28 In this case, Mr. Honie’s ineffective assistance of counsel

claims were dismissed on summary judgment. We therefore review

the postconviction court’s grant of summary judgment for correctness. See Hoyer v. State, 2009 UT 38, ¶ 7, 212 P.3d 547 (“When

reviewing a grant of summary judgment, we review the district

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court’s conclusions of law for correctness and give them no deference.”).

B. PCRA Funding Claim

¶29 This appeal presents our first opportunity to review a

funding determination under the 2008 amendment to the PCRA. As

amended, the PCRA authorizes a district court to “exceed the

maximum [funding for postconviction review of a death penalty

case] only upon a showing of good cause” and provides a list of

factors to be considered “[i]n determining whether good cause

exists.” UTAH CODE § 78B-9-202(3)(b), (e). This statutorily granted

discretion is comparable to other contexts in which district courts

have been given discretion to depart from a general rule based on a

showing of good cause. Examples include decisions of whether to

impose sanctions for failure to follow disclosure requirements,

whether to grant a motion for a continuance, and whether to waive

the notice requirements for an alibi witness. See Bodell Constr. Co. v.

Robbins, 2009 UT 52, ¶ 34, 215 P.3d 933 (explaining that a district

court has discretion to impose sanctions where it finds that a party’s

failure to disclose was harmful to the opposing party and was not

supported by good cause ); Brown v. Glover, 2000 UT 89, ¶ 43, 16 P.3d

540 (explaining that “[t]rial courts have substantial discretion in

deciding whether to grant continuances,” which, under Utah Rule

of Civil Procedure 40(b), turns on whether good cause has been

shown (internal quotation marks omitted)); State v. Ortiz, 712 P.2d

218, 219 (Utah 1985) (reviewing for abuse of discretion a district

court’s decision that “good cause had not been shown for the alibi

witness substitution”). In light of the similarity between these

decisions and the decision of whether to award additional funding

underthe PCRA, we will review the postconviction court’s denial of

Mr. Honie’s funding request for an abuse of discretion.

C. Motion for Relief Under Rule 60(b)

¶30 We review a district court’s dismissal of a rule 60(b)

motion for abuse of discretion because these motions are inherently

fact intensive and involve principles of fairness and equity that are

not easily reviewable at the appellate level. Kell v. State, 2012 UT

25, ¶ 7, 285 P.3d 1133. But we review for correctness the district

court’s legal determinations made as part of a 60(b) ruling. Id.

ANALYSIS

I. MR. HONIE’S TRIAL COUNSEL WAS NOT INEFFECTIVE

¶31 We first turn to Mr. Honie’s contention that his trial

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counsel was ineffective. We evaluate each of Mr. Honie’s ineffective

assistance of counsel claimsunderthe SupremeCourt’s two-part test

articulated in Strickland v. Washington, 466 U.S. 668 (1984). 

Mr. Honie must establish for each of his claims (1) that trial counsel’s performance was objectively deficient and (2) that such

deficient performance was prejudicial. Id. at 687. Because failure to

establish either prong of the test is fatal to an ineffective assistance

of counsel claim, we are free to address Mr. Honie’s claims under

either prong. Id. at 697 (“[T]here is no reason for a court deciding an

ineffective assistance claim to approach the inquiry in the same

order or even to address both components of the inquiry if the

defendant makes an insufficient showing on one.”).

¶32 As to the first Strickland prong, Mr. Honie must show that

trial counsel’s “representation fell below an objective standard of

reasonableness” when measured against prevailing professional

norms. Id. at 687–88. The Strickland Court conspicuously refused to

establish explicit guidelines, instead noting that the proper “inquiry

must be whether counsel’s assistance was reasonable considering all

the circumstances.” Id. at 688. Because of the temptation to secondguess trial counsel’s decisions with the benefit of hindsight,

“[j]udicial scrutiny of counsel’s performance must be highly

deferential” and courts must acknowledge a strong presumption

that counsel’s conduct “falls within the wide range of reasonable

professional assistance.” Id. at 689. Thus, we examine the reasonableness of trial counsel’s conduct in light of the particular facts of

the case, viewed as of the time of counsel’s conduct. Id. at 690.

¶33 Under Strickland’s second prong, Mr. Honie is required to

affirmatively demonstrate that trial counsel’s actions prejudiced

him. Id. at 693. To do so, he 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.” Id. at 694. When assessing prejudice, we will assume that

the decisionmaker “reasonably, conscientiously, and impartially”

applied the proper governing standards. See id. at 695. Thus, in the

context of a postconviction challenge to a death sentence, the proper

inquiry is whether the sentencer, in this case the trial judge, ”would

have concluded that the balance of aggravating and mitigating

circumstances did not warrant death” in the absence of counsel’s

deficient performance. Id.

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A. Mr. Honie’s Trial Counsel Was Not Ineffective 

in Investigating the Facts of Mr. Honie’s Case

¶34 Mr. Honie claims that his trial counsel improperly decided

to pursue a concession strategy following an inadequate investigation into potential defenses and mitigating factors,6

including (1) the

degree of Mr. Honie’s intoxication at the time of the murder and

during subsequent police interrogation;

7

(2) evidence related to

Mr. Honie’s potential mental illness, including cognitive defects

resulting from Fetal Alcohol Syndrome (FAS); (3) the degree to

which Mr. Honie might have been affected by long-term

polysubstance abuse; (4) the potential that Mr. Honie suffered brain

damage resulting from a fall; and (5) evidence relating to

Mr. Honie’sbackground, family history, social situation, and mental

state. Specifically, Mr. Honie challenges the postconviction court’s

determination that trial counsel reasonably relied on expert advice

from Dr. Cohn and Mr. Ted Cilwick during his investigation. 

Mr. Honie argues that it was unreasonable for counsel to rely on

6 Though Mr. Honie’s argument on this point is somewhat

unclear, he seems to argue that trial counsel’s decision to pursue a

concession strategy early in the investigatory process colored the

entirety of trial counsel’s subsequent investigation, causing him to

inadequately investigate a number of potential defenses and

mitigating factors. But defense counsel in a capital case often faces

the daunting task of defending a client whose guilt is clear. In such

cases, counsel “may reasonably decide to focus on the trial’s penalty

phase, at which time counsel’s mission is to persuade the trier that

his client’s life should be spared.” Florida v. Nixon, 543 U.S. 175, 191

(2004). If counsel’s decision to pursue a concession strategy

comports with the demands of Strickland, such a strategic decision

will not give rise to a successful claim of ineffective assistance of

counsel. Id. at 192. In this case, we cannot fault trial counsel’s

decision to pursue a concession strategy in the face of the overwhelming evidence of Mr. Honie’s guilt.

Also, to the extent Mr. Honie challenges the timing of trial

counsel’s decision to pursue a concession strategy, he has not

directed us to any authority—nor have we discovered any such

authority—that would support the proposition that timing alone

wouldinvalidate trial counsel’s otherwise legitimate strategic choice.

7 Mr. Honie’s claims relating to his potential voluntary intoxication defense will be addressed below. See infra Section I.B.

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Dr. Cohn “as the sole mental health and mitigation expert because

she was not qualified to do all that was required in Honie’s case.”

Additionally, Mr. Honie argues that trial counsel’s reliance on

Mr. Cilwick was unreasonable because Mr. Cilwick is not a trained

mitigation expert, but is instead only a private investigator.

¶35 We conclude that Mr. Honie’s trial counsel was not

ineffective in his mitigation investigation. We therefore affirm the

postconviction court’s grant of summary judgment on this issue.

¶36 An attorney has a duty to conduct a reasonable investigation into the facts of his client’s case and to make reasonable

decisions regarding theproper scope ofthat investigation. See Taylor

v. State, 2007 UT 12, ¶ 47, 156 P.3d 739 (citing Strickland, 466 U.S. at

691). Counsel’s investigation is especially important in death

penalty cases. Id. Though trial counsel is not required to present all

evidence uncovered during the investigation of a client’s case, an

attorney is required to perform any investigation competently and

thoroughly. Archuleta v. Galetka, 2011 UT 73, ¶ 125, 267 P.3d 232.

¶37 Inevaluating the reasonablenessof counsel’s investigation,

“we consider not only the quantum of evidence already known to

counsel, but also whether the known evidence would lead a

reasonable attorney to investigate further.” Taylor, 2007 UT 12, ¶ 48

(internal quotation marks omitted). Our focus is not on counsel’s

decision regarding whether to present certain evidence, but rather

on “whetherthe investigation supporting counsel’s decision . . . was

itself reasonable.” Id. ¶ 47 (internal quotation marks omitted). 

Accordingly, though we grant counsel wide discretion in trial

strategy, “strategic choices made after a less than complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation.” 

Id. (internal quotation marks omitted).

¶38 In Archuleta, the defendant raised ineffective assistance of

counsel claims very similar to those raised by Mr. Honie. First,

Mr.Archuleta challenged his defense counsel’s mitigation investigation on the basis that counsel relied solely on the advice of a single

expert to evaluate Mr. Archuleta’s mental health and personal

history. Archuleta, 2011 UT 73, ¶ 126. Mr. Archuleta argued that

trial counsel should have retained the services of a

neuropsychologist to determine whether Mr. Archuleta suffered

from brain damage or other mental health problems. Id. In rejecting

Mr. Archuleta’s claim, we noted that trial counsel reasonably relied

on the advice of a highly qualified forensic psychologist, who

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recommended against further psychological testing. Id. ¶ 127. 

Specifically, we held that

it is reasonable for counsel to rely on the judgment

and recommendations of qualified experts with

expertise beyond counsel’s knowledge. If an attorney

had the burden of reviewing the trustworthiness of a

qualified expert’s conclusion before the attorney was

entitled to make decisions based on that conclusion,

the role of the expert would be superfluous.

Id. ¶ 129 (internal quotation marks omitted).

¶39 Just as it was reasonable for Mr. Archuleta’s trial counsel

to rely on a qualified expert, so was it reasonable for Mr. Honie’s

trial counsel to rely on Dr. Cohn and her findings. Dr. Cohn holds

both a masters degree and a Ph.D. in psychology from the University of Utah. She also completed a postdoctoral fellowship at the

University of Southern California in forensic psychology. In her

investigation, Dr. Cohn examined Mr. Honie’s medical and psychotherapy reports, his history of past criminal behavior, and “a very

detailed file” on the murder itself, including all police reports.

Dr. Cohn interviewed Mr. Honie, his former therapist, his parents,

and other family members. She traveled to the Hopi Reservation,

where Mr. Honie was raised and examined tribal court records

detailing Mr. Honie’s criminal history, his mental health records

from the Hopi Guidance Clinic dating from 1990 through 1995,

Mr. Honie’s complete medical records from 1975 through 1996, and

what school records were available.

¶40 Dr. Cohn also conducted a “very detailed psychological

evaluation” of Mr. Honie over the course of two days. She spent a

total of approximately fourteenhours inface-to-face interviews with

Mr. Honie and another six hours conducting psychological tests. 

Dr. Cohn conducted an intellectual screening and concluded that

Mr. Honie had an IQ in the average range. She also conducted a

neuropsychological screening looking for signs of brain damage

stemming from Mr. Honie’s extensive history of drug abuse. These

tests offered no indication that Mr. Honie suffered from brain

damage or any other cognitive defects.

¶41 Given this extensive examination of Mr. Honie and his

personal history, we cannot say thatDr.Cohn’smitigation investigation was deficient orthat trial counsel was objectively unreasonable

in relying on her conclusions. Mr. Honie has failed to raise a factual

dispute as to the reasonableness of trial counsel’s reliance. It is not

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enough to speculate that another expert might have explored other

areas of mitigation. Absent facts to support a finding that trial

counsel’s reliance on his chosen expert was objectively unreasonable, Mr. Honie cannot survive summary judgment on this issue.

¶42 Mr. Honie also claims that trial counsel was deficient in

failing to retain a mitigation specialist to conduct the investigation.

We disagree. First, trial counsel hired Dr. Cohn, who is a mitigation

specialist. Second, trial counsel is not required to hire a mitigation

specialist in orderto comply with his Sixth Amendment obligations. 

¶43 We addressed this issue in Archuleta as well. 

Mr. Archuleta’s trial counsel hired an investigator who had never

before prepared a mitigation case. Archuleta, 2011 UT 73, ¶¶ 123–24. 

We nevertheless rejected Mr. Archuleta’s claim that counsel’s

reliance on his investigator’s findings was unreasonable. Id. We

specifically rejected the argument that defense counsel is required

to hire a mitigation specialist to fulfill Sixth Amendment requirements. Id. ¶ 125 (“[S]uch specialists are not the only reasonable

manner in which a mitigation workup may be accomplished.”). 

Rather, we made clear in Archuleta that a defendant must establish

that the investigator “rendered unreasonably deficient performance

or . . . failed to pursue leads that a reasonably trained mitigation

specialist would have pursued.” Id.

¶44 Mr. Honie has failed to establish that Dr. Cohn and

Mr. Cilwick rendered unreasonably deficient performance or failed

to pursue valid mitigation leads. Mr. Honie argued before the

postconviction court that trial counsel should have investigated the

effects on Mr. Honie’s behavior of his long-term drug and alcohol

abuse, his dysfunctional upbringing and family life, his poverty and

cultural background, and his various psychological disorders. But

Dr. Cohn’s trial testimony establishes that she investigated these

areas of Mr. Honie’s life. Moreover, beyond his general claim that

Dr. Cohn and Mr. Cilwick were too inexperienced to effectively

conduct a mitigation investigation, Mr. Honie points to no specific

facts that would support a finding that they performed deficiently

or failed to follow up on valid leads. Absent such a showing,

Mr. Honie cannot survive summary judgment on this issue.

¶45 Finally, Mr. Honie argues, in a cursory fashion, that it was

inappropriate for trial counsel to rely on Mr. Honie and his family

to supply potential mitigation leads. To the contrary, the Supreme

Court has long recognized that counsel’s investigatory decisions are

usually based on information supplied by the defendant. Strickland,

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466 U.S. at 691. Indeed, it would be difficult to conceive of a more

appropriate source of information as to the defendant’s personal

background and mental state. Absent some showing that trial

counsel completely abdicated his investigatory responsibilities in

favor of relying on the unguided contributions of Mr. Honie and his

family, we find it perfectly reasonable fortrial counsel to have relied

on the defendant and his family to assist in his own mitigation

investigation.

¶46 In sum, Mr. Honie has failed to raise a factual dispute as to

whether trial counsel’s mitigation investigation was objectively

deficient. Trial counsel was entitled to rely on the advice of

qualified experts and did so. We reaffirm that trial counsel is not

required to retain a mitigation specialist to satisfy his Sixth Amendment obligations. Moreover, trial counsel may reasonably rely on

the defendant and his family to help guide the mitigation investigation. Because we conclude that trial counsel did not render deficient

performance in his mitigation investigation, we need not reach the

second Strickland prong of prejudice and affirm the postconviction

court’s grant of summary judgment on this issue.

B. Trial Counsel Was Not Objectively Unreasonable in Choosing Not to

Pursue a Voluntary Intoxication Defense at Trial

¶47 Mr. Honie next argues that trial counsel was ineffective for

failing to pursue a voluntary intoxication defense at trial. Specifically, Mr. Honie argues that there was “strong evidence of intoxication available to trial counsel,” and that “trial counsel had an

obligationto investigate voluntary intoxication as a possible defense

at trial before deciding on a concession theory.” We hold that

Mr. Honie has not established that trial counsel’s performance was

objectively unreasonable and affirm the postconvictioncourt’sgrant

of summary judgment on this issue.

¶48 Mr. Honie has failed to show “that counsel’s representation fell below an objective standard of reasonableness.” Strickland,

466 U.S. at 687–88. In evaluating the reasonableness of trial counsel’s representation, “a court must indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. at 689. “[S]trategic choices made after

thorough investigation of law and facts relevant to plausible options

are virtually unchallengeable.” Id. at 690. Relevant to Mr. Honie’s

claims, “the law does not require counsel to raise every available

nonfrivolous defense.” Knowles v. Mirzayance, 556 U.S. 111, 124–27

(2009) (holding that in the insanity defense context, counsel is not

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obligated to raise claims that he “reasonably believed [were]

doomed to fail”); see also Wiggins v. Smith, 539 U.S. 510, 533 (2003)

(explaining that “Strickland does not require counsel to investigate

every conceivable line of mitigating evidence no matter how

unlikely the effort would be to assist the defendant . . . . [or even to]

present mitigating evidence at sentencing in every case”).

¶49 In order to prevail on a voluntary intoxication defense,

Mr. Honie’s state of intoxication must have deprived him of the

capacity to form the mental state necessary for aggravated murder. 

See UTAH CODE § 76-2-306 (“Voluntary intoxication shall not be a

defense to a criminal charge unless such intoxication negates the

existence of the mental state which is an element of the

offense . . . .”). Thus, trial counsel would have needed to present

evidence showing that Mr. Honie was so intoxicated that he neither

intended to kill nor knew he was killing a person at the time of the

murder. See UTAHCODE § 76-5-202 (stating that aggravated murder

is committed “if the actor intentionally or knowingly causes the

death of another”).

¶50 It is not enough to merely present evidence showing that

the defendant had been drinking. Rather, to establish a viable

voluntary intoxication defense, the defendant must point to

evidence showing that he was so intoxicated that he was incapable

of forming the requisite mental state for the crimes committed. See

Adams v. State, 2005 UT 62, ¶ 22, 123 P.3d 400 (stating that “mere

proof of drinking or being drunk is not enough in many cases” to

mount a voluntary intoxication defense); see also State v. Wood, 648

P.2d 71, 90 (Utah 1982) (noting that the defendant must “prove

much more than [the fact that] he had been drinking” before

committing the offense to be entitled to a voluntary intoxication

defense, and that the defendant must “show that his mind had been

affected to such an extent that he did not have the capacity to form

the requisite specific intent or purpose”).

¶51 In arguing that counsel was ineffective in failing to pursue

a voluntary intoxication defense, Mr. Honie primarily relies on a

toxicology report showing that his blood alcohol content was 0.07

and that he had both active and metabolized THC in his blood four

and one-half hours after the murder. Mr. Honie argues that, given

the length of time between the murder and the blood test, his blood

alcohol level would have been “significantly higher” at the time of

the murder. As a result, Mr. Honie argues that trial counsel had a

duty to hire an expert to conduct a retrograde extrapolation to show

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that his actual blood alcohol level was approximately 0.15 atthe time

of the murder.

¶52 Mr. Honie also argues that trial counsel knew that he was

highly intoxicated at the time of the murder. Specifically, Mr. Honie

contends that he told trial counsel that on the day of the murder he

consumed an eighteen pack of beer with a friend from 8:00 a.m. to

11:00 a.m. and that between 12:00 p.m. and 1:00 p.m. he and his

friendpurchased another eighteen pack and continuedtodrink beer.

Mr. Honie also represented that, during this time, he smoked four

to five bowls of marijuana and that later in the day he consumed

liquor, smoked more marijuana, and also took methamphetamine

before consuming more beer.

¶53 Mr. Honie also relies on his actions and statements the

night of the murder to demonstrate that he had a high level of

intoxication. For example, during his first interrogation, approximately one and one-half hours after the murder, Mr. Honie made

numerous nonsensical statements to Officer Davis, telling him the

Mexican Mafia was responsible for killing the victim. According to

Officer Davis, Mr. Honie “was all over the place,” and talked about

being a member of the occult and playing with Ouija boards. In

subsequent interrogations, however, Mr. Honie admitted to Officer

Davis that these statements were not true.

¶54 Finally,Mr. Honie argues that testimony atthepreliminary

hearing should have alerted trial counsel that Mr. Honie’s level of

intoxication on the night of the murder was significant. For

example, Mr. Honie states that the taxi driver who took Mr. Honie

to the victim’s neighborhood testified that Mr. Honie was intoxicated. Similarly, Mr. Honie points to the testimony of Carol

Pikyavit, the victim’s daughter, who stated that Mr. Honie was

intoxicated when she spoke with him by phone on the night of the

murder. Carol stated that Mr. Honie was not at the point of extreme

intoxication, but that she believed “he was getting there.”

¶55 Although this evidence may serve to establish that

Mr. Honie had been drinking at the time he committed the murder,

Mr. Honie has not provided any evidence showing that his

“intoxication at the time of the offense prevented him from understanding that his actions were causing the death of another.” 

Evidence of intoxication, be it witness testimony or a numerical

measure of the defendant’s actual blood alcohol content, is not

sufficient to establish a voluntary intoxication defense without

actual evidence of the defendant’s mental state. Thus, even though

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Mr. Honie had consumed both alcohol and marijuana prior to

committing the murder, “there is no evidence [showing that] he was

so intoxicated at the time of the crime that he was unable to form the

specific intent necessary to prove the crimeof[aggravatedmurder].” 

Wood, 648 P.2d at 90.

¶56 Indeed, the evidence suggests the contrary. When the

police arrived at the scene of the crime, one of Mr. Honie’s first

statements to police was “I stabbed her. I killed her with a knife.”

As the postconviction court noted, this statement “clearly show[ed]

that [Mr. Honie] understood he had engaged in lethal conduct upon

a human being.”

¶57 Similarly, although Mr. Honie claimed at first that he had

blacked out during the murder, he later admitted to Dr. Cohn that

he remembered the details of the crime and that he wished he had

blacked out so that he would not remember what he had done.

Again, this evidence shows that Mr. Honie was not so intoxicated

that he did not know he was killing the victim. 

¶58 In addition, the State points to evidence showing

Mr. Honie knew what he was doing immediately before and after

the murder. For example, although Mr. Sweeney, the cab driver,

could tell that Mr. Honie was intoxicated, he also testified to the fact

that Mr. Honie was still able to give him directions to the victim’s

neighborhood. Similarly, after the commission of the crime, Mr.

Honie conversed coherently with police officers and obeyed their

commands.

¶59 Officer Davis testified that although Mr. Honie smelled of

alcohol during his first interview, Officer Davis did not believe that

Mr. Honie was intoxicated to the point that he was unable to

understand what Officer Davis was saying or what was going on. 

Officer Davis stated, “I mean, he was intoxicated, yes, but not—he

was not inebriated. I mean he knew what was going on.” And the

trial court creditedOfficerDavis’s testimony concerningMr. Honie’s

level of intoxication, stating, “[W]hile [Officer Davis] knew the

defendant had been drinking, it was clearthat he was fully aware of

his situation. Moreover, the defendant’s physical appearance and

actions did not indicate that his mental state was out of the ordinary.”

¶60 Finally, the fact that Mr. Honie intended to kill is supported by the testimony showing that Mr. Honie threatened to kill

the victim on the day of the murder. Carol testified that Mr. Honie

called herthe day of the murder wanting herto come see him. When

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Carol said she could not come because she had to go to work,

Mr. Honie threatened to kill her mother. Though Carol testified that

Mr. Honie seemed intoxicated during their conversation,

Mr. Honie’s threat to kill the victim, made only hours before he did

kill her, shows that Mr. Honie not only had the capacity to form an

intent to murder the victim, but that he in fact acted on that intent. 

Thus, even though Mr. Honie has pointed to evidence that he was

intoxicated at the time of the murder, there was sufficient evidence

of his ability to form the requisite mens rea that trial counsel could

reasonably decide that a voluntary intoxication defense was

untenable.

¶61 In sum, Mr. Honie has pointed to no evidence showing he

was so intoxicated that he was unable to form the requisite intent to

commit aggravated murder. On the contrary, there is significant

evidence demonstrating that Mr. Honie knew what he was doing

and had the intent necessary to commit aggravated murder. We

accordingly conclude that Mr. Honie would have been unable to

establish a viable voluntary intoxication defense and trial counsel

was not unreasonable in choosing not to pursue that defense. 

Because trial counsel’s decision not to pursue a voluntary intoxication defense fell well within the range of acceptable performance, we

affirm the postconviction court’s grant of summary judgment onthis

issue.8

 

C. Mr. Honie Was Not Prejudiced by Trial Counsel’s Failure 

to Object to the Destruction of Evidence Relating to Mr. Honie’s 

Level of Intoxication

¶62 Mr. Honie next argues trial counsel was ineffective for

failing to object to the destructionof evidence relating to Mr. Honie’s

level of intoxication at the time of the murder. Because we have

concluded that Mr. Honie could not establish a viable voluntary

intoxication defense, supra ¶ 61, he has not raised a genuine factual

dispute as to trial counsel’s effectiveness on this issue. Even if we

assume trial counsel’s decision not to object constituted unreasonably deficient performance, Mr. Honie cannot establish that he was

prejudiced by counsel’s actions unless he can demonstrate that the

8 Though we need not determine whether Mr. Honie was

prejudiced by trial counsel’s decision, we note that, in the absence of

a viable voluntary intoxication defense, Mr. Honie would be hard

pressed to show how the outcome of his trial would have been

different had trial counsel pursued such a defense.

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Opinion of the Court

evidence was potentially exculpatory. See Strickland, 466 U.S. at 694 

(“The 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.”). Because Mr. Honie did

not have a viable voluntary intoxication defense, any error on trial

counsel’s part in failing to object to the destruction of evidence of

Mr. Honie’s intoxication was harmless. Again, the absolute amount

of alcohol or drugs in Mr. Honie’s system is insufficient to establish

a voluntary intoxication defense when the evidence so strongly

demonstrates that Mr. Honie intended to kill Claudia. Because

Mr. Honie has not raised a genuine issue of material fact as to the

prejudice prong of the Strickland analysis, we affirm the

postconviction court’s grant of summary judgment on this issue.

D. Trial Counsel’s Strategic Decision to Introduce Mr. Honie’s

Inculpatory Statements to Police Was Not Objectively Unreasonable

¶63 Mr. Honie next argues that trial counsel was ineffective for

introducing during the guilt phase of trial inculpatory statements

that Mr. Honie made to the police. Specifically, Mr. Honie contends

that trial counsel was ineffective for admitting the statements

despite the fact that the statements were potentially obtained in

violation of Mr. Honie’s Miranda rights and were highly prejudicial

in nature. Because the State had previously agreed to stipulate to

the inadmissibility of the statements at trial, Mr. Honie faults trial

counsel’s choice to introduce them voluntarily.

¶64 Conversely, the State argues that trial counsel made a

legitimate strategic decision to admit the statements as part of his

concession strategy because he believed the statements exhibited

Mr. Honie’s remorse. We agree. We hold that trial counsel’s

strategic choice to voluntarily admit Mr. Honie’s inculpatory

statements was not objectively unreasonable.

¶65 Mr. Honie has not demonstrated “that counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. As noted previously, “a court must indulge a

strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Id. at 689. In addition,

“strategic choices made afterthorough investigation of law andfacts

relevant to plausible options are virtually unchallengeable.” Id. at

690; see also Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1408

(2011) (noting that strategic decisions of trial counsel “are due a

heavymeasure ofdeference” onappellate review (internal quotation

marks omitted)).

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¶66 Trial counsel may make the strategic choice to use

potentially inculpatory evidence if it furthers the client’s interest. 

See Ayala v. Hatch, 530 F. App’x 697, 701 (10th Cir. 2013) (approving

of trial counsel’s strategic choice not to move to suppress

inculpatory statements made to the police). As long as such

evidence furthers his client’s interests, the use of the potentially

damaging evidence is not objectively unreasonable. See Gardner v.

Ozmint, 511 F.3d 420, 430 (4th Cir. 2007) (“An attorney’s insistence

upon the admission of evidence that significantlydamageshis client,

without using that evidence in any manner to further his client’s

interest cannot be considered ‘sound trial strategy’ and certainly

does not comport with ‘prevailing professional norms.’” (quoting

Strickland, 466 U.S. at 689)).

¶67 In Gardner, the Fourth Circuit held that trial counsel was

objectively unreasonable in allowing the admission of inflammatory

statements when trial counsel had no strategic reason for doing so. 

Id. at 430. Trial counsel insisted on the admission of damaging

statements given by a witness to impeach that witness’s testimony,

but never used the statements to impeach the witness on crossexamination. Id. Because of this, the Fourth Circuit held that trial

counsel’s agreement to the admission of the inflammatory statements at trial was objectively unreasonable.9

 Id. 

¶68 But trial counsel’s strategic choice to admit a defendant’s

inculpatory statements may be reasonable if doing so serves the

defendant’s interests. See United States v. Fulks, 683 F.3d 512, 519 (4th

Cir. 2012). In Fulks, trial counsel advised that the defendant confess

his guilt to authorities in a pretrial meeting. Id. at 517. When the

defendant challenged this advice as unreasonable in postconviction

proceedings, trial counsel asserted that his advice was part of an

overall strategy designed to avoid the death penalty for his client. 

Id. at 517–18. Moreover, having the defendant confess to authorities

prior to trial allowed trial counsel to introduce the defendant’s

version of events at trial without subjecting the defendant to crossexamination. Id. Furthermore, trial counsel stated that “we wanted

the statement to be used at trial” because it demonstrated “acceptance of responsibility [and] . . . some true indicia of remorse.” Id.

9 The Fourth Circuit nevertheless held that the defendant in

Gardner failed to show ineffective assistance of counsel because he

could not prove that he was prejudiced by trial counsel’s strategic

decision. Id. at 430–31.

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at 518 (alterations in original)(internal quotation marks omitted). 

Because of the overwhelming evidence of guilt in the case, the

Fourth Circuit recognized the “unpalatable hand the defense team

was dealt” and held that trial counsel’s strategic choice was not an

objectively unreasonable litigation tactic. Id. at 519.

¶69 Like the defense counsel in Fulks, Mr. Honie’s trial counsel

was dealt a similarly “unpalatable hand.” As we have discussed,

Mr. Honie’s trial counsel was presented with a client who was

clearly guilty of committing a heinous crime. Here, trial counsel

adopted a mitigation strategy, attempting to highlight Mr. Honie’s

feelings of remorse through the admission of statements Mr. Honie

made to police. In addition, unlike trial counsel in Gardner,

Mr. Honie’s trial counsel not only had a specific strategic purpose

for admitting these statements, but counsel also used them to further

his client’s interest by attempting to present mitigating evidence for

both the judge and jury to consider.

¶70 Even though the statements Mr. Honie made to Officer

Davis were inculpatory, because trial counsel had a legitimate

strategy for their admission, trial counsel’s decision was not

objectively unreasonable.10 We therefore affirm the postconviction

court’s grant of summary judgment on this issue.

E. Trial Counsel’s Strategic Decision to Introduce During Sentencing

Mr. Honie’s Confession to Dr. Cohn Was Not Objectively Unreasonable

¶71 Mr. Honie next argues that trial counsel was ineffective for

introducing, during sentencing, Mr. Honie’s confession to Dr. Cohn

that he had molested D.R. on the night of the murder. Specifically,

Mr. Honie argues that trial counsel was ineffective for introducing

his confession without first investigating claims that D.R.’s father,

and not Mr. Honie, had molested her. We hold that trial counsel’s

performance was not objectively unreasonable.

¶72 As discussed above, trial counsel’s decision to admit

potentially damaging statements during trial in an attempt to

demonstrate a defendant’s remorse is a legitimate trial strategy. See

10 Because we find that trial counsel did not render objectively

unreasonable performance, we need not determine whether

Mr. Honie was prejudiced by the admission of his inculpatory

statements. But we note that, in order to establish prejudice,

Mr. Honie would need to show that he could have prevented the

State from introducing the statements. 

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supra ¶¶ 63–70. So long as trial counsel uses such statements to

further his client’s interests, we will not question a valid strategic

choice. This is especially true when the challenged statements are

double-edged, containing both inculpatory and exculpatory

elements. The decision whether to admit such statements is an

inherently strategic discretion.

¶73 Trial counsel’s decision to admit Mr. Honie’s confession to

Dr. Cohn falls within this category of legitimate trial strategy. 

During the sentencing phase, trial counsel presented evidence of

Mr. Honie’s remorse. Specifically, Dr. Cohn testified about

Mr. Honie’s expressions of remorse, such as the fact that Mr. Honie

began crying when he admitted to her that he had molested D.R. 

Because trial counsel admitted Mr. Honie’s confession to Dr. Cohn

as part of a legitimate trial strategy in an attempt to highlight

Mr. Honie’s feelings of remorse, we hold that trial counsel’s actions

were not objectively unreasonable.

¶74 Accordingly, we conclude that Mr. Honie has failed to

demonstrateunreasonable performance under Strickland concerning

trial counsel’s decision to admit Mr. Honie’s confession to

Dr. Cohn.11 We therefore affirm the postconviction court’s grant of

summary judgment on this issue.

F. Trial Counsel’s Advice to Waive Jury Sentencing Did Not

Constitute Ineffective Assistance of Counsel

¶75 Mr. Honie asserts trial counsel improperly advised him to

waive his right to a jury at sentencing and that his waiver was not

knowing and voluntary. Specifically, Mr. Honie argues that the

colloquy with trial counsel and the court was inadequate in that it

failed to make clearthat Mr. Honie had a right to be sentenced by an

impartial jury, failed to clarify that the jurors would be required to

weigh the aggravating and mitigating factors, and failed to ensure

that Mr. Honie understood what mitigating and aggravating factors

were. Further, Mr. Honie claims that he changed his mind and

wanted to withdraw his waiver prior to trial, but was told by

11 Though we need not reach the issue of whether Mr. Honie

demonstrated that he was prejudiced by counsel’s strategicdecision,

we note that the trial court was prepared to find that Mr. Honie

molested D.R., even without Mr. Honie’s confession. As such,

Mr. Honie cannot demonstrate that, but for trial counsel’s decision

to introduce his inculpatory statements, the court would not have

found that Mr. Honie molested D.R.

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Opinion of the Court

counsel that it was too late. First, we hold that trial counsel’s advice

to waive a jury at sentencing was not objectively unreasonable

under the first prong of Strickland. Second, even if trial counsel’s

failure to move to withdraw Mr. Honie’s waiver constituted

deficient performance, we hold Mr.Honie was not prejudiced under

the second prong of Strickland.

¶76 We begin our analysis with the strong presumption that

trial counsel acted competently. See Strickland, 466 U.S. at 689. If

counsel had a reasonable basis for advising a client to waive a jury

at sentencing, we will not second-guess that strategic decision. See

Wiggins, 539 U.S. at 523 (indicating that counsel’s strategic choices

made following a thorough review of the relevant facts and law

surrounding the issue “are virtually unchallengeable” (internal

quotation marks omitted)). We previously have held that counsel

may reasonably presume that a trial judge “will apply the law justly

and make an impartial decision in both the guilt and penalty phases

of a capital trial.” Taylor v. Warden, 905 P.2d 277, 284 (Utah 1995). 

Similarly, it is reasonable for counsel to presume that a judge “will

disregard any personal beliefs and discharge his or her duty to

apply the law.” Id. “Indeed, absent specific allegations of personal

bias, we cannot conceive of any situation in which choosing a judge

over a jury would not constitute a legitimate tactical decision.” Id.

¶77 In Taylor, the defendant claimed his counsel was deficient

in advising him to waive a jury at both the guilt and sentencing

phases of his capital trial. Id. Mr. Taylor was convicted of capital

homicide and sentenced to death for sexually assaulting an elevenyear-old girl and strangling her with a telephone cord. Id. at 281. 

We rejected Mr. Taylor’s ineffective assistance claim in part because

we thought it reasonable for counsel to prefer a trained jurist to a lay

jury when the crime was particularly gruesome. Id. at 288 (“Taylor

had very little going for him in the penalty phase, and the

determination that his chances were better with a judge than a jury

was perfectly plausible.”).

¶78 Mr. Honie was charged with a particularly gruesome

crime. Though there is no need to reiterate the details of that crime

again here, the jury was confronted with those details during the

State’s case-in-chief. It was not unreasonable for trial counsel to

conclude, in light of the overwhelming evidence of Mr. Honie’s guilt

and the gruesome nature of the crime itself, that Mr. Honie would

fare better at sentencing with a judge than with a jury. Moreover,

during the April 30, 1999 scheduling conference in which Mr. Honie

waived his right to a jury, the trial judge specified that imposing the

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death penalty was “the last thing a judge would want to do.” The

judge acknowledged that, although he was not philosophically

opposed to the death penalty, he would only impose it if the facts

and circumstances of the case warranted it. Particularly in light of

the trial judge’s statements on the record, we cannot fault counsel’s

advice to waive jury sentencing in favor of sentencing by the trial

judge.

¶79 Mr. Honie’s second claim relating to his waiver of jury

sentencing is that his waiver was not knowing and voluntary.

Specifically, Mr. Honie claims he was never informed of his right to

an impartial jury, was never informed that the jury would be

required to weigh the aggravating and mitigating factors, and was

never properly instructed as to what aggravating and mitigating

factors actually are. The State correctly notes that Mr. Honie’s claim

that he was not notified regarding his right to an impartial jury and

the use of aggravating and mitigating factors is not relevant to his

choice between a judge and a jury in terms of sentencing. With

either a judge or jury at sentencing, Mr. Honie was guaranteed the

right to an impartial sentencer who would weigh the aggravating

and mitigating factors.

¶80 The relevant consideration in Mr. Honie’s decision to

waive jury sentencing was the difference between a single judge and

a twelve-person jury. And this difference was described to

Mr. Honie during the April 30, 1999 hearing. The trial judge

specifically asked whether Mr. Honie understood that he was

reducing his chances of convincing a person to vote against the

death penalty from “12 [sic] down to one.” Thus, the relevant

distinction between sentencing by a jury or a judge was explained

to Mr. Honie and he affirmed to the court that he understood the

distinction and wanted to proceed with the judge at sentencing. We

cannot say, on this record, that Mr. Honie’s waiver was not knowing

and voluntary.

¶81 Finally, Mr. Honie argues that trial counsel rendered

ineffective assistance when he failed to move to withdraw

Mr. Honie’s waiver as requested. According to Mr. Honie, a week

after he submitted his jury waiver, he told trial counsel that he had

changed his mind and wanted to withdraw the waiver. But trial

counsel told Mr. Honie it was too late, even though trial was still a

week away. The only record evidence of Mr. Honie’s desire to

withdraw the waiver is his statement that he told trial counsel he

had changed his mind. Because this case comes before us on appeal

from a grant of summary judgment, we assume that Mr. Honie did,

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in fact, attempt to withdraw his waiver. We need not decide if trial

counsel’s failure to move to withdraw Mr. Honie’s waiver amounts

to ineffective assistance of counsel because, even if trial counsel’s

performance was objectively unreasonable, Mr. Honie cannot show

that he was prejudiced. We have previously recognized that the

decision to waive a jury is inherently strategic because a defendant

will often fare better with a trained jurist than a lay jury, especially

when the crime is particularly heinous. Taylor, 905 P.2d at 284

(“[A]bsent specific allegations of personal bias, we cannot conceive

of any situation in which choosing a judge over a jury would not

constitute a legitimate tactical decision.”). Mr. Honie has offered no

evidence tending to establish that the outcome of his sentencing

would have been different had he opted for jury sentencing.

Because Mr. Honie has failed to satisfy the prejudice prong of

Strickland, we affirm the postconviction court’s ruling.

¶82 In summary, we hold that Mr. Honie failed to raise a

genuine issue of material fact for each of his ineffective assistance of

counsel claims, namely: (1) trial counsel’s decision to adopt a

concession strategy ratherthan focusing on other potential defenses

or mitigating factors, (2) trial counsel’s decision not to investigate or

pursue a voluntary intoxication defense, (3) trial counsel’s failure to

object to the destruction of evidence of Mr. Honie’s intoxication the

night of the murder, (4) trial counsel’s failure to suppress

Mr. Honie’s inculpatory statements to police, (5) trial counsel’s

introduction of Mr. Honie’s inculpatory statements to Dr. Cohn

concerning the molestation of one of the children present the night

of the murder, and (6) trial counsel’s failure to properly advise

Mr. Honie of his right to have a jury determine his sentence. We

therefore affirm the postconviction court’s grant of summary

judgment for the State on each of these issues.

II. THE POSTCONVICTION COURT DID NOT 

ERR WHEN IT DENIED MR. HONIE’S REQUEST 

FOR ADDITIONAL FUNDS

¶83 Mr. Honie next argues that the postconviction court erred

when it denied him additional funding to develop his ineffective

assistance of trial counsel claims. Prior to 2008, the PCRA set an

absolute limit on funding for litigation costs in a capital

postconviction case of $20,000. UTAHCODE § 78-35a-202(2)(c)(2004);

UTAH ADMIN. CODE r. 25-14-5 (2004). In 2008, the Legislature

amended the statute to allow for additional funding beyond the

$20,000 cap “upon a showing of good cause.” Id. § 78B-9-202(3)(c). 

The statute provides that, when considering “whether good cause

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exists to exceed” the $20,000 limit, the court shall consider:

(i) the extent to which the work done to date and the

further work identified by the petitioner duplicates

work andinvestigation performed during the criminal

case under review; and

(ii) whether the petitioner has established that the

work done to date and the further work identified is

reasonably likely to develop evidence or legal

arguments that will support postconviction relief. 

Id. § 78B-9-202(3)(e). 

¶84 Shortly after the amendment went into effect, the parties

in this case submitted briefing on the issue of whether the

amendment applied retroactively to allow Mr. Honie to petition for

additionalfunding. OnNovember 28, 2008, the postconviction court

issued a memorandum decision ruling that the 2008 amendment to

the PCRA applied retroactively12and that Mr. Honie was thus

“entitled to seek payment . . . for all work completed and litigation

expenses incurred prior to the [amendment’s] affective date for

which payment hadnot yet beenreceived.” Mr. Honie subsequently

filed two motions—one in April 2009 and one in May

2009—requesting that the postconviction court “approve the

payment of both past and future litigation expense beyond the

statutory cap.” In his April 9, 2009 motion, Mr. Honie asked the

postconviction court to approve payment for work that his

postconviction expert, Mr.Whitman, had already performed. In his

May 2009 request, Mr. Honie asked for additional funding to allow

for continued investigation and litigation regarding the adequacy of

trial counsel’s mitigation investigation. 

¶85 The postconviction court denied both of Mr. Honie’s

requests for additional funding. In its memorandum decision, the

court explained that Mr. Honie was required, but had failed, to show

that the work Mr. Whitman had already done and the future work

that he and other experts planned to do were “reasonably likely to

develop evidence or legal arguments in support of [Mr. Honie’s]

12 Because neither party has challenged on appeal the

postconviction court’s ruling that the 2008 amendment to the PCRA

applied retroactively, we need not review whether that determination was correct. We merely assume for purposes of this appeal that

the 2008 amendment did apply to Mr. Honie’s funding requests. 

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Opinion of the Court

claim that trial counsel was ineffective in conducting the mitigation

investigation and presenting the mitigation case during trial.”

Although Mr. Honie had shown that his postconviction mitigation

investigators and experts would have followed a different mitigation

strategy than that of trial counsel, Mr. Honie had failed to show how

the additional funding would support his argument that trial

counsel’s mitigation investigation and counsel’s presentation of Mr.

Honie’s mitigation case were ineffective. In the postconviction

court’s view, Mr. Honie had not and could not “demonstrate good

cause to exceed the maximum sums authorized for litigation

expenses under the PCRA.”

¶86 We agree with the postconviction court that Mr. Honie

failed to show good cause to increase his postconviction funding

beyond the $20,000 statutory limit. Where the only issue raised was

whether trial counsel had provided ineffective assistance in its

mitigation investigation and presentation of Mr. Honie’s mitigation

case, Mr. Honie was required to show how the additional funding

would have likely supported that claim. But Mr. Honie’s requests

for additional funding merely described that the requested funding

would be used to conduct a different mitigation investigation. And

because there is a “wide range of reasonable professional

assistance,” Strickland v. Washington, 466 U.S. 668, 689 (1984), simply

showing “that some different strategy or procedure might have

brought about a better result . . . . is not sufficient to sustain a claim

of ineffective assistance of counsel,” Opie v. Meacham, 419 F.2d 465,

467 (10th Cir. 1969). Because Mr. Honie failed to show good cause,

we hold that the postconviction court correctly denied Mr. Honie’s

requests for additional funding.

III. THE POSTCONVICTION COURT DID NOT 

ERR WHEN IT DENIED MR. HONIE’S MOTION 

FOR RELIEF FROM JUDGMENT PURSUANT 

TO RULE 60(b)(6)

¶87 Finally, Mr. Honie argues that the postconviction court

abused its discretion by denying his rule 60(b)(6) motion. Under

rule 60(b) of the Utah Rules of Civil Procedure, a district court may

set aside a final judgment for reasons such as mistake, newly

discovered evidence, or fraud. Where none of rule 60(b)’s

enumerated errors are present, a party may seek relief from final

judgment under a catch-all provision, which provides that a party

may be relieved from a final judgment for “any other reason

justifying relief from the operation of the judgment.” UTAH R. CIV.

P. 60(b)(6).

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¶88 Here, Mr. Honie filed a rule 60(b)(6) motion following the

district court’s order denying his petition for postconviction relief.

The basis for his rule 60(b)(6) claim was that his postconviction

counsel had been rendered ineffective by the district court’s denial

of his request for additional funding. Mr. Honie also asserted that

the PCRA provision rejecting a right to effective assistance of

postconviction counsel violates both the Utah and federal

constitutions. See UTAH CODE § 78B-9-202(4) (explaining that

“[n]othing in this chapter shall be construed as creating the right to

the effective assistance of postconviction counsel, and relief may not

be granted on any claim that postconviction counsel was

ineffective”). In essence, Mr. Honie argued that his postconviction

judgment should be set aside because he had a constitutionally

protected right to the effective assistance of postconviction

counsel—despite the language of the PCRA saying otherwise—and

because he was deprived of that right when his postconviction

counsel was denied the additional funding necessary to effectively

represent him.

¶89 On February 9, 2012, the postconviction court issued its

order denying Mr. Honie’s rule 60(b)(6) motion. The postconviction

court did not reach the constitutional issue, but instead held that

regardless of whether a right to effective assistance ofpostconviction

counsel exists, under the Strickland standard, Mr. Honie’s

postconviction counsel was not rendered ineffective by limited

investigatory funding.

¶90 We affirm the postconviction court’s ruling, but we do so

on the alternative ground that a rule 60(b)(6) motion is not an

appropriate vehicle for bringing a claim of ineffective assistance of

postconviction counsel under the facts of this case. In Menzies v.

Galetka, we reversed the denial of a postconviction rule 60(b)(6)

motion where postconviction counsel behaved in such a grossly

negligent manner that the defendant was essentially deprived of

postconviction review at both the district court and on appeal. 2006

UT 81, 150 P.3d 480. In Menzies, postconviction counsel “willfully

disregarded nearly every aspect of Menzies’ case,” and therefore

“defaulted Menzies’ entire post-conviction proceeding, resulting in

the dismissal of Menzies’ case.” Id. ¶¶ 1, 24. And although

Menzies’ postconviction counsel timely filed a notice of appeal, he

laterfailed to file a docketing statement, resulting in the dismissal of

Menzies’ appeal. Id. ¶ 39. Because postconviction counsel’s

egregious behavior not only led to the dismissal of Menzies’ case at

the district court, but also deprived him of appellate review, we held

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Opinion of the Court

that the case rose to the level of “unusual and exceptional

circumstances” necessary to allow for rule 60(b)(6) relief.

Id. ¶¶ 71–77.

¶91 Our subsequent cases have essentially limited Menzies to

its facts. For example, in Archuleta v. Galetka, we held that only

where an ineffective assistance of counsel claim rises to the level of

“willful and deliberate” inaction or gross negligence, will a rule

60(b)(6) motion be appropriate. 2011 UT 73, ¶ 166 & n.14, 267 P.3d

232. Similarly, in Kell v. State, we discussed the limited scope of our

holding in Menzies and concluded that rule 60(b)(6) relief is most

common when a deficiency in either representation or notice

precluded appellate review. 2012 UT 25, ¶ 18, 285 P.3d 1133. Unlike

the defendant in Menzies, the defendant in Kell had “moved to set

aside a [postconviction] judgment that had been heard, ruled on,

and appealed.” Id. ¶ 20. As a result, we held that Menzies was not

controlling and affirmed the district court’s denial of Kell’s 60(b)(6)

motion. Id.

¶92 Like the defendant in Kell,Mr. Honie is seeking to set aside

a postconviction judgment that has been heard, ruled on, and

appealed. And as with the alleged deficiencies of counsel’s

performance in Kell, the claimed deficiencies of Mr. Honie’s counsel

did not result in a dismissal of Mr. Honie’s postconviction case orin

a waiver of his right to appellate review. Although the denial of

additional funding may have limited the scope of postconviction

counsel’s investigation, such limitation did not amount to a

complete default of counsel’s obligations. We thus reiterate that,

short of a complete default in representation, a rule 60(b)(6) motion

is an inappropriate vehicle for bringing a claim of ineffective

assistance of postconviction counsel. Because Mr. Honie’s claims of

ineffective assistance of postconviction counsel do not rise to the

level of a complete default, we affirm the postconviction court’s

denial of his rule 60(b)(6) motion.13

13 Mr. Honie’s argument concerning postconviction counsel’s

ineffectiveness is unpersuasive for an additional reason. Mr. Honie

relies solely on the contention that postconviction counsel was

rendered ineffective because of the denial of additional funds that

would have enabled counsel to further investigate Mr. Honie’s

ineffective assistance oftrial counsel claims. Yet, as explained above,

supra ¶¶ 83–86, an award of funds would have been inappropriate

(continued...)

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CONCLUSION

¶93 We hold that Mr. Honie has failed to raise a genuine issue

of material fact as to his ineffective assistance of counsel claims and

that the postconviction court was correct in denying Mr. Honie

additional funds. In addition, we hold that the postconviction court

did not err when it denied Mr. Honie’s rule 60(b)(6) motion. 

Accordingly, we affirm the postconviction court’s grant of summary

judgment on all claims.

13

 (...continued)

because, as a matter of law, Mr. Honie cannot show that trial counsel

was ineffective. Therefore, even if a rule 60(b) motion were an

appropriate vehicle for these claims, Mr. Honie’s contentions

concerning postconviction counsel’s ineffectiveness fail.

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