2019 UT App 156

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

CHRISTOPHER JAMES BONDS,

Appellant.

Opinion

No. 20180238-CA

Filed September 26, 2019

Third District Court, Salt Lake Department

The Honorable Keith A. Kelly

No. 161912346

Nathalie S. Skibine, Attorney for Appellant

Sean D. Reyes and Jeffrey S. Gray, Attorneys

for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES

MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN

concurred.

HARRIS, Judge:

¶1 After a scuffle, Christopher James Bonds fatally shot his 

friend (Victim). In an interview with police a few hours after the 

shooting, Bonds admitted that he had shot Victim, but claimed 

that, right before the shooting, Victim had threatened to harm 

Bonds’s children, and that he had shot Victim in order to protect 

them. A jury was not persuaded by Bonds’s theory of selfdefense, and convicted Bonds of murder, rather than acquitting 

him or convicting him of manslaughter. Bonds now appeals, 

asserting that his confession was coerced and should have been 

suppressed, and that his trial attorney provided ineffective 

assistance by failing to object to improper jury instructions 

regarding self-defense, as well as part of the State’s evidence 
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regarding self-defense. We conclude that the trial court did not 

err by denying Bonds’s motion to suppress his confession. But 

we agree with Bonds that his attorney provided ineffective 

assistance, and therefore reverse all but one of his convictions 

and remand for a new trial.

BACKGROUND1

¶2 Bonds and Victim were good friends and socialized often; 

indeed, about a week before the events giving rise to this case, 

Bonds permitted Victim to live with him on a temporary basis 

after Victim’s girlfriend (Girlfriend) kicked him out of her 

apartment. One evening, Bonds and his wife (Wife) left their two 

children with Wife’s mother—who lived in the same apartment 

complex as they did—and went out with Victim and Girlfriend. 

The evening started with drinks at Girlfriend’s aunt’s house, and 

then the group decided to visit a bar in Salt Lake City, Utah. En 

route to the bar, they stopped at Bonds’s apartment to smoke 

some marijuana, and continued to drink alcohol, having brought 

a bottle with them in the car.

¶3 Once the couples arrived at the bar, however, the evening 

began to turn sour. They encountered a man (Man) in the bar 

who had allegedly sexually assaulted Wife on a prior occasion. 

Bonds confronted Man about the incident, but Wife also argued 

with Bonds because she “was mad that [Bonds] didn’t do 

anything in the first place.” Meanwhile, Victim and Girlfriend 

were arguing in another section of the bar about some cocaine 

that Girlfriend had apparently lost. Eventually, Girlfriend and 

Wife tried to leave the bar without the men, but Bonds and 

 

1. “We recite the facts in the light most favorable to the verdict, 

presenting conflicting evidence only as necessary to understand 

the issues on appeal.” State v. Salgado, 2018 UT App 139, ¶ 2 n.1,

427 P.3d 1228.
State v. Bonds

20180238-CA 3 2019 UT App 156

Victim followed them outside. Victim thought Girlfriend was too 

intoxicated to drive, and expressed his opinion on the issue by 

punching the driver’s side door of her car. Eventually, Bonds 

and Victim got into the car and the four of them drove off. 

Victim continued to vociferously opine that Girlfriend was too

intoxicated to drive, and eventually Girlfriend pulled over to let 

Victim drive. At this point, Bonds began talking about going 

back to the bar to “get [Man]” and later speculated that they 

might “shoot up the bar” in the process.

¶4 Once they got back to Bonds’s apartment, Bonds went 

inside to retrieve a gun, coming back outside with it before 

anyone else went inside. At this point Girlfriend wanted to go 

home, but Victim insisted on staying to “have his friend’s back.” 

When Bonds told Wife that he and Victim were going to go back 

to the bar, Girlfriend told Victim that, if he left with Bonds, she 

wanted nothing more to do with him. Neither woman felt 

threatened at this time, and they eventually went inside the 

apartment to have another drink, leaving the two men outside 

by themselves.

¶5 A few minutes later, around 2:00 a.m., the women heard 

gunshots outside. They heard first a single shot, then about a 

ten-second pause, then two or three more shots. Very shortly 

thereafter, Bonds came to the door of the apartment and told the 

women that he had just shot Victim; Bonds did not say anything 

more about any reason for the shooting, and did not offer 

additional details. Bonds then left the scene.

¶6 Girlfriend then ran outside and found Victim, a few

buildings away within the same apartment complex, bleeding 

from a gunshot wound in his back. Victim was still conscious, 

and asked Girlfriend where Bonds was and said, “I can’t believe 

he did this.” A neighbor called the authorities and Victim was 

promptly taken to the hospital, where he died from his wounds

at approximately 2:50 a.m. In addition to the gunshot wound in 
State v. Bonds

20180238-CA 4 2019 UT App 156

his back, Victim had also been shot in the front of his arm, just 

below the elbow crease. According to autopsy results, Victim 

had a blood alcohol content of .141 and also tested positive for 

THC, the primary psychoactive ingredient in marijuana.

¶7 After leaving the scene, Bonds called a friend to ask for a 

ride, and in the course of the five-minute conversation, told him 

that he had just shot Victim, although he offered no reason why 

the shooting occurred. The friend thought Bonds seemed “drunk 

and high,” and declined Bonds’s request for a pick-up.

¶8 A few minutes later, at 2:17 a.m., police located Bonds at a 

convenience store and arrested him; during the course of the 

arrest, they found Bonds to be unarmed and compliant. Other 

than telling officers, while he was being arrested, that he did not 

have a gun on him, Bonds remained “pretty quiet” during his 

interactions with the officers, and the officers did not ask him 

any questions. By about 2:20 a.m., officers had transported

Bonds to the police station and ushered him into a small 

interview room that contained a video camera; Bonds’s entire 

experience in that room was recorded. Officers instructed Bonds 

to sit, handcuffed, in a chair in the corner of the room, and told 

him that someone would come soon to “talk to” him. But officers 

decided to first speak with both Wife and Girlfriend, and so it 

took them some time to get around to speaking with Bonds. As 

the hours ticked by, officers would occasionally come into the 

interview room to check on Bonds, sometimes loosening his 

cuffs or giving him water, and instructing him that he was to 

remain in the chair. Bonds attempted to sleep in the chair, but 

found it difficult to do so while handcuffed. At 5:55 a.m., officers 

escorted Bonds to a “break room” with a couch, where Bonds 

was able to sleep for about an hour. At about 7:00 a.m., officers 

brought Bonds back to the small interview room, and two 

detectives (Detectives) began interviewing Bonds at 7:07 a.m.
State v. Bonds

20180238-CA 5 2019 UT App 156

¶9 Before interviewing Bonds, officers had spoken with both

Wife and Girlfriend, and although the record does not contain 

transcripts or video of those interviews, Detectives were aware 

of those witnesses’ observations before interviewing Bonds. In 

addition to some of the facts recited above, Detectives were also 

aware that Bonds had at one point been diagnosed with bipolar

disorder, even though he had not taken any medication for that 

condition in about a year. Detectives would later testify that they 

did not observe any signs of intoxication or mental illness in 

Bonds by the time they spoke with him, some five or six hours 

after he would have last consumed alcohol or drugs.

¶10 After getting basic contact information from Bonds and 

exchanging pleasantries, Detectives advised Bonds of his 

Miranda2 rights and asked him if he understood those rights and 

whether he wished to talk to Detectives about the events of that 

past night. Bonds agreed to answer questions, and offered, as his 

initial version of events, that he “didn’t do nothing to nobody” 

and that he had gotten into an altercation with Man at the bar 

but that was it. When first asked about his later encounter with 

Victim, Bonds stated that he “heard gunshots” but that he “was 

never around when the gunshots came around” and that the 

blood on him was not from the incident with Victim. Detectives 

did not believe Bonds’s denial, and told Bonds that they had 

“talked to a lot of people” and that Bonds did not “know 

everything that we know.” Bonds then stated that he and Victim 

had gotten into a fistfight at the bar, and that he and Victim had 

fought again outside his apartment, but continued to maintain 

that he had “no access to no gun at all” and that he had “been 

actually in the clean.”

¶11 Detectives then told Bonds that they knew he had been in 

possession of a gun “because there’s like at least three to four 

 

2. Miranda v. Arizona, 384 U.S. 436, 468–69 (1966).
State v. Bonds

20180238-CA 6 2019 UT App 156

people that saw you with a gun out in front of your apartment 

tonight.” Bonds continued to deny possession of any gun, and

Detectives continued to press, telling Bonds that he needed “to 

start being honest and up front,” and reiterating that people had 

seen him with a gun, had heard shots fired, and had “see[n]

[Victim] get shot” by Bonds. Bonds appeared frustrated by these 

comments, questioning how anybody could have seen Victim

get shot “when me and [Victim] was outside by our self,” and 

telling Detectives that he knew his rights and that he knew what 

they were trying to do because his mother had previously been a 

deputy sheriff.

¶12 Detectives then took a different tack, softening their tone 

and telling Bonds that he seemed like a “nice guy and respectful 

and everything” and “it sounds like a mistake was made 

tonight,” even implying that he might have been trying to 

protect Wife or his children. After Bonds shared with Detectives 

that he was a religious man, Detectives asked Bonds “what God 

would want [him] to do at this point” about “coming clean and 

everything else.” In this same vein, Detectives told Bonds that 

Wife “wants you to do the right thing” and that his children 

would one day respect the fact that he had “manned up to it and 

he did the right thing afterwards.”

¶13 Bonds then asked for a cigarette and asked Detectives

“what am I facing?” Though Detectives knew at that point that

Victim had died, they told Bonds that, as far as they knew, 

Victim was “in the hospital” and that they did not know any 

further details about “what happened and what’s going on with 

him.” After telling Detectives that “you all the coolest detectives 

I’ve ever met in my life in Utah,” Bonds again stated that his 

mother had been a sheriff, and Detectives asked Bonds what he 

thought his mother would want him to do. After some 

additional back-and-forth, Bonds then made the following 

statement: “I don’t know where that gun at man, but I did shoot 

[Victim] . . . .” Bonds stated that he “shot three shots,” and that 
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20180238-CA 7 2019 UT App 156

the shooting occurred somewhere between his apartment and

his mother-in-law’s apartment.

¶14 After confessing to the shooting, Bonds offered additional 

details, giving Detectives a description of the gun, and telling 

Detectives that he gave the gun to Wife’s mother after the 

shooting (an allegation his mother-in-law later denied; the gun 

was eventually found outside a neighboring apartment building, 

wrapped in a sweatshirt). Bonds described a scuffle between him

and Victim where Victim attempted to grab the gun from him, 

the gun fell to the ground and discharged, and Bonds shot 

Victim as soon as he recovered the gun. According to Bonds, 

Victim had “said some crazy shit” during the altercation, 

including a threat to “shoot this whole house and these kids,” a 

threat that Bonds claimed put him “in a rage” at Victim bringing 

his “kids in this,” and causing him to vow that “nobody gonna 

hurt my kids.”

¶15 Bonds was eventually charged with murder; felony 

discharge of a firearm with serious bodily injury; three counts of 

felony discharge of a firearm; and possession of a firearm by a 

restricted person. After some pretrial proceedings, Bonds filed a 

motion to suppress the statements he made during the 

interview, arguing that he was intoxicated to a degree that he 

did not understand his rights, and that his statements during his 

interview were involuntary and were the product of coercive 

police tactics. The trial court denied the motion, finding that 

Bonds knowingly and intelligently waived his rights, and that 

his confession was not coerced.

¶16 At trial, Bonds’s counsel acknowledged to the jury that 

Bonds had indeed shot Victim, but argued that he acted in 

defense of himself and/or his Wife and children. In support of 

that defense, Bonds sought—and the court agreed to give—

various instructions on self-defense, including instructions about 

imperfect self-defense and manslaughter. The instructions
State v. Bonds

20180238-CA 8 2019 UT App 156

specifically addressing self-defense and imperfect self-defense 

correctly stated that the State bore the burden of proving beyond 

a reasonable doubt that self-defense does not apply. But the 

separate instruction (Instruction No. 35) setting forth the 

elements of murder and manslaughter stated as follows:

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:

* * *

1. Christopher Bonds;

2. Commits murder (See instruction no. 30)

3. 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.

¶17 At trial, the State presented testimony from Girlfriend and 

officers who responded to the scene. Bonds did not testify, but 

the State showed the jury a video recording of his interview with 

Detectives. In his cross-examination of Girlfriend, Bonds’s 

counsel stressed that everyone was intoxicated and that Victim 

had been arguing, sometimes violently, with Girlfriend 
State v. Bonds

20180238-CA 9 2019 UT App 156

throughout the night. In his closing argument, Bonds’s counsel 

argued that Bonds acted in self-defense or imperfect self-defense, 

in order to protect his children from Victim, and specifically 

referred the jury to the instructions regarding self-defense. In its 

closing argument, the State acknowledged that, at the time of the 

shooting, Victim was running in the general direction of Bonds’s 

mother-in-law’s apartment, where Bonds’s children were 

staying. The State also emphasized Bonds’s silence while being 

arrested, noting that Bonds “said nothing . . . about defending 

himself and others,” to arresting officers, and commenting that 

“common sense” would seem to dictate that someone who truly 

acted in self-defense would say something about self-defense 

while being arrested.

¶18 After deliberating, the jury convicted Bonds of murder, 

discharge of a firearm with serious bodily injury, and two counts 

of discharge of a firearm, but acquitted him on one count of 

discharge of a firearm. The jury also found that Bonds had been 

in possession of a gun on the night in question, and the court 

later found Bonds guilty of possession of a firearm by a 

restricted person, based on the jury’s finding that Bonds had 

possessed a gun as well as the parties’ stipulation that, due to a 

prior felony conviction, Bonds was a restricted person not 

allowed to possess one. The trial court later agreed to merge the 

discharge of a firearm conviction and the murder conviction. The 

court eventually sentenced Bonds to prison, to serve a term of 

fifteen years to life for the murder charge.

ISSUES AND STANDARDS OF REVIEW

¶19 Bonds now appeals his convictions,3 and raises two issues 

for our review. First, Bonds argues that the trial court erred 

 

3. Although Bonds does not specifically so state, we do not 

construe Bonds’s appeal as challenging his conviction for 

(continued...)
State v. Bonds

20180238-CA 10 2019 UT App 156

when it admitted Bonds’s statements from the police interview 

into evidence, and asserts that his confession was coerced. 

“The ultimate determination” of whether a confession was 

voluntary “is a legal question; accordingly, we review the 

district court’s ruling for correctness. We set aside a district 

court’s factual findings only if they are clearly erroneous.” State 

v. Rettenberger, 1999 UT 80, ¶ 10, 984 P.2d 1009 (quotation 

simplified).4 However, when the trial court’s conclusion is based 

on a review of interrogation transcripts, “we are in as good a 

position as the district court to examine the transcripts and 

determine what the law is,” and accordingly “we owe the 

district court no deference.”5 State v. Arriaga-Luna, 2013 UT 56, 

¶ 8, 311 P.3d 1028.

 

(...continued)

possession of a firearm by a restricted person. None of the 

arguments Bonds advances on appeal involve issues relevant to 

that conviction. Moreover, neither at trial nor on appeal has 

Bonds contested the fact that he shot Victim, and Bonds 

stipulated that he was a restricted person for the purposes of the 

charge. Under the circumstances, we do not perceive any 

challenge to his conviction on this count.

4. Recently, our supreme court wondered whether correctness is 

truly the appropriate standard of review in cases in which a trial

court has made a determination as to the voluntariness of a 

confession. State v. Apodaca, 2019 UT 54, ¶ 29 n.6. But the court 

stopped short of overruling the statement in State v. Rettenberger, 

1999 UT 80, ¶ 10, 984 P.2d 1009, to that effect, see Apodaca, 2019 

UT 54, ¶ 29 n.6, and therefore we consider that statement to be 

controlling.

5. In addition to reviewing the transcript of Bonds’s interview 

with Detectives, we have also reviewed the entire video

(continued...)
State v. Bonds

20180238-CA 11 2019 UT App 156

¶20 Second, Bonds argues that his trial counsel provided 

ineffective assistance by (a) failing to object to the elements jury 

instruction that, in his view, improperly stated the burden of 

proof for imperfect self-defense, and (b) failing to object when 

the State elicited testimony regarding Bonds’s post-arrest silence

and then used that evidence to argue that Bonds must not have 

acted in self-defense. “When a claim of ineffective assistance of 

counsel is raised for the first time on appeal, there is no lower 

court ruling to review and we must decide whether the 

defendant was deprived of the effective assistance of counsel as 

a matter of law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 

P.3d 587 (quotation simplified).

ANALYSIS

I. Motion to Suppress Confession

¶21 “The due process clauses of the Fifth and Fourteenth 

Amendments of the U.S. Constitution protect individuals from 

being compelled to incriminate themselves.” State v. ArriagaLuna, 2013 UT 56, ¶ 9, 311 P.3d 1028. This right protects only 

against “compulsory self-incrimination.” Michigan v. Tucker, 417 

U.S. 433, 439 (1974). Indeed, “those competent and freewilled to 

do so may give evidence against the whole world, themselves 

included.” United States v. Washington, 431 U.S. 181, 187 (1977)

(quotation simplified); see also United States v. Monia, 317 U.S. 

424, 427 (1943) (stating that the Fifth Amendment “speaks of 

compulsion” and “does not preclude a witness from testifying 

voluntarily in matters which may incriminate him”); State v. 

Piansiaksone, 954 P.2d 861, 865 (Utah 1998) (“Admissions of guilt 

by wrongdoers, if not coerced, are inherently desirable.”

 

(...continued)

recording of that interrogation, including the hours when Bonds 

was alone in the interview room.
State v. Bonds

20180238-CA 12 2019 UT App 156

(quotation simplified)). In this case, Bonds maintains that his 

confession was coerced, and that therefore its admission into 

evidence violated his constitutional rights.

¶22 In analyzing a defendant’s claim that his confession was 

coerced, the overarching question that courts must answer is 

“‘whether, considering the totality of the circumstances, the free 

will of the witness was overborne.’” Arriaga-Luna, 2013 UT 56, 

¶ 9 (quoting Washington, 431 U.S. at 188). This analysis requires a 

court to look at all of the circumstances collectively; indeed, even 

in cases where “no one single issue or specific circumstance is 

egregious enough by itself to qualify as coercive,” “coercion may 

still result from the cumulative effect of many relatively minor 

issues.” State v. Apodaca, 2019 UT 54, ¶ 28 (quotation simplified).

¶23 In assessing the totality of the circumstances, courts must 

take into account “both the characteristics of the accused and the 

details of the interrogation.” Arriaga-Luna, 2013 UT 56, ¶ 10 

(quotation simplified). The “details of the interrogation” include 

“external factors, such as the duration of the interrogation, the 

persistence of the officers, police trickery, absence of family and 

counsel, and threats and promises made to the defendant by the 

officers.” Id. (quotation simplified). The “characteristics of the 

accused” is a reference to “subjective” factors that “may affect [a 

witness’s] susceptibility to more subtle forms of psychological 

persuasion,” including “the defendant’s mental health, mental 

deficiency, emotional instability, education, age, and familiarity 

with the judicial system.” Id. (quotation simplified). Finally, for a 

confession to be involuntary, “there must be a causal 

relationship between the coercion and the subsequent 

confession.” Piansiaksone, 954 P.2d at 865 (quotation simplified).

¶24 Bonds contends that both objective and subjective factors 

point toward a determination that his confession was 

unconstitutionally coerced. Although we agree with Bonds that 

Detectives’ behavior in this case was not perfect, after examining 
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20180238-CA 13 2019 UT App 156

the totality of the circumstances presented, we are unpersuaded 

that Bonds’s free will was overborne by Detectives’ actions.

A. Objective Factors

¶25 Bonds argues that some of Detectives’ actions during the 

interrogation were improper and created an atmosphere of 

coercion. Specifically, Bonds asserts that Detectives “used threats 

and promises, the false friend technique, misrepresentations, 

isolation, and references to his family and religion.” We examine 

these contentions in turn.

¶26 With regard to threats and promises, Bonds correctly 

points out that “an interrogation can be impermissibly coercive 

because it carried a threat of greater punishment or a promise for 

lesser punishment depending on whether a defendant 

confessed.” State v. Rettenberger, 1999 UT 80, ¶ 29, 984 P.2d 1009 

(quotation simplified). Bonds contends that Detectives used 

threats and promises to compel his confession by telling Bonds, 

among other things, that “you’re gonna see your son” and that 

they would “put . . . in the[ir] report” the fact that Bonds had 

been cooperative. In our judgment, however, these statements 

cannot fairly be characterized as “implicit threats [that] can 

constitute psychological coercion and overcome a defendant’s 

free will.” Arriaga-Luna, 2013 UT 56, ¶ 17. At no point during the 

interview did Detectives ever convey to Bonds “a threat of 

greater punishment or a promise for lesser punishment 

depending on whether [he] confessed.” Rettenberger, 1999 UT 80, 

¶ 29 (quotation simplified). Indeed, Detectives did not tell Bonds 

what he was charged with until after he confessed to the 

shooting. And Detectives’ statement about making a note in their 

report that Bonds had been cooperative was immediately 

followed by a statement by one of the Detectives that “I’m not 

promising anything so don’t get me wrong.” And in any event, a

“mere representation to a defendant by officers that they will 

make known to the prosecutor and to the court that the 
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20180238-CA 14 2019 UT App 156

defendant cooperated with them” is not coercive. Apodaca, 2019 

UT 54, ¶ 31 (quotation simplified). Moreover, Detectives’ 

statement that Bonds would get to see his son was not unduly 

coercive; even jail inmates have visitation rights, and the 

statement was not accompanied by any promise of when, or 

under what circumstances, Bonds might get to see his son. In 

short, we do not construe the statements Bonds identifies as 

threats or promises, and certainly not as statements that were

impermissibly coercive.

¶27 Bonds next contends that Detectives used the “false friend 

technique”—an interrogation tactic whereby officers represent 

“that they were [the suspect’s] friends and that they were acting 

in his best interest,” see Rettenberger, 1999 UT 80, ¶ 24—when 

they called him “bud” and “friend,” and told him that they were 

trying to “be fair” and wanted to “give [Bonds] the chance to 

give [his] side of the story.” We are not persuaded that 

Detectives’ friendliness crossed the line into impropriety. Here, 

while Detectives were certainly friendly to and empathized with 

Bonds at several points, they never represented that they were 

acting in his best legal interests. Unlike in Rettenberger, see id.

¶¶ 27–28, there is no point in the interrogation where Bonds 

appears to believe that Detectives were trying to protect his 

interests, nor does he ever appear to go along with Detectives’ 

version of events—indeed, as discussed below, he took issue 

with Detectives when they made claims about eyewitnesses that 

were not completely true. Moreover, the false friend technique, 

by itself, is not “sufficiently coercive to produce an involuntary 

confession.” Id. ¶ 28. Rather, it merely “provides an environment 

in which other interrogation tactics may become coercive,” id.

and where “the suspect is fooled into trusting that the 

interrogator's behavior will conform to the norms of friendship,” 

id. ¶ 24 (quotation simplified). Detectives created no such 

environment here. See Apodaca, 2019 UT 54, ¶ 38 (stating that, 

although officers clearly “tried to establish rapport with” the 
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20180238-CA 15 2019 UT App 156

suspect, their statements “simply demonstrate a desire to work 

with [the suspect] to solve the case” and were not coercive).

¶28 Bonds next complains that Detectives misrepresented the 

evidence that they had at their disposal. “[I]n certain cases, 

police misrepresentations may be sufficiently egregious to 

overcome a defendant’s will so as to render a confession 

involuntary.” Rettenberger, 1999 UT 80, ¶ 20. However, “a 

defendant’s will is not overborne simply because he is led to 

believe that the government’s knowledge of his guilt is greater 

than it actually is.” Id. (quotation simplified). In this case, 

Bonds’s contention that Detectives made at least some 

misrepresentations of the facts is correct: in their questioning of 

Bonds, Detectives did embellish the information they had 

apparently been given from Wife and Girlfriend, and Detectives 

were less than forthcoming with Bonds about what they knew 

about Victim’s condition. By the time they spoke with Bonds, 

police officers had already spoken with Wife and Girlfriend,

who had seen him with a gun and identified him as the shooter.

Detectives did not act improperly by weaving that information 

into the questions they put to Bonds. But Detectives went further 

than that: even though they had not yet talked to any other 

witnesses, and had not talked to anyone who actually saw Bonds 

shoot Victim, on several occasions during the interrogation they 

told Bonds that they had spoken with “at least three to four 

people that saw you with a gun out in front of your apartment 

tonight,” and that there had been several eyewitnesses who 

actually saw Bonds shoot Victim. Detectives also told Bonds that 

they did not know the current status of Victim’s condition, even 

though by that point they already knew that Victim had passed 

away, and that the case was potentially a murder case rather 

than an assault case.

¶29 Thus, the question with which we must contend is not 

whether Detectives made misrepresentations—they did—but 

whether those misrepresentations were “sufficiently egregious,” 
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20180238-CA 16 2019 UT App 156

see id., to overcome Bonds’s free will during the interview. On 

this record, while we do not condone Detectives’ prevarications, 

we are not persuaded that Detectives’ actions caused Bonds to 

render an involuntary confession. Our conclusion is driven by 

analysis of two cases: Rettenberger and State v. Werner, 2003 UT 

App 268, 76 P.3d 204.

¶30 In Rettenberger, the interrogating officers made no fewer 

than “36 false statements” while interviewing an eighteenyear-old suspect with a “maturity level of a fifteen-year-old” and 

a “below-average I.Q.” 1999 UT 80, ¶¶ 21, 37. The 

“overwhelming majority” of the officers’ misrepresentations 

“were not merely ‘half-truths’ but were complete fabrications 

about testimonial and physical evidence.” Id. ¶ 21. Officers told 

the suspect that he was the subject of an undercover 

investigation, and that they had fingerprint, ballistic, and other 

physical evidence tying him to the scene as well as the testimony 

of “numerous eye-witnesses and co-defendants implicating 

him.” Id. They also told him that they had “records of phone 

conversations incriminating him,” that they “had found blood in 

his car,” and that they had more evidence against him “than the 

police had in the O.J. Simpson case.” Id. All of these statements

were outright lies, and our supreme court determined that the 

officers had acted with “[e]xtreme duplicity.” Id. ¶ 23. The court 

concluded that this behavior, viewed together with the totality of 

the circumstances presented, rendered involuntary the 

confession they eventually extracted. Id. ¶ 45.

¶31 In Werner, by contrast, the interviewing officers also made 

certain misrepresentations, but their exaggerations were not as 

egregious as those described in Rettenberger. In Werner, the 

interviewing officers told the suspect that “there was 

‘overwhelming evidence against him,’” and on two separate 

occasions told him they had a surveillance tape showing him at 

the scene, going as far as putting a blank video tape labeled 

“Mall Security of [Suspect] in the Parking Lot” in the 
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20180238-CA 17 2019 UT App 156

interrogation room. 2003 UT App 268, ¶ 30 & n.4. In our written 

opinion, this court was careful not to “condone the video tape 

hoax,” but we noted that there was “significant other evidence of 

[the suspect’s] guilt” that supported the officers’ assertion that 

there existed “overwhelming evidence.” Id. ¶¶ 30–32 (quotation 

simplified). After assessing the totality of the circumstances 

presented, we concluded that the officers’ behavior was not 

“sufficiently egregious . . . so as to render [the] confession 

involuntary.” Id. ¶ 32 (quotation simplified).

¶32 We find Detectives’ misrepresentations to be far less 

egregious than those described in Rettenberger, and at least 

somewhat less egregious than those described in Werner. In this 

case, Detectives told Bonds that “at least three to four people . . .

saw you with a gun,” that there were eyewitnesses who saw 

Bonds shoot Victim, and that they did not know Victim’s status. 

These statements were more like “half-truths,” Rettenberger, 1999 

UT 80, ¶ 21 (quotation simplified), than outright lies; indeed, 

officers had spoken to two people (although not “three to four”) 

who saw Bonds with a gun, and although there were no 

eyewitnesses who saw Bonds shoot Victim, the witnesses on the 

scene had identified Bonds as the shooter. Moreover, while 

Detectives were not completely forthcoming with Bonds about 

Victim’s condition, their falsehood was that they did not know 

Victim’s condition; they made no affirmative misrepresentation 

that, for instance, Victim was fine and would fully recover. In 

addition, Bonds did not appear to be falling for Detectives’ 

tricks; he challenged their representation about eyewitnesses 

seeing him shoot Victim, told them that he knew what they were 

up to because his mother had been a deputy sheriff, and 

appeared to become fairly uncooperative when confronted with 

the misrepresentations. Perhaps as a result, Detectives quickly 

changed course and did not repeat the statements. In our view, 

Detectives’ actions—while perhaps falling short of exemplary 

police behavior—did not, in this case, cause Bonds’s free will to 

be overborne or to render his confession involuntary.
State v. Bonds

20180238-CA 18 2019 UT App 156

¶33 Bonds next asserts that officers improperly subjected 

Bonds to “extended periods of incommunicado interrogation.” 

See Rettenberger, 1999 UT 80, ¶ 33. In advancing this argument, 

Bonds relies on Rettenberger, in which the suspect was 

interrogated in seriatim fashion over a two-day period; the first 

interrogation lasted about “two hours,” after which the suspect 

was “placed in solitary confinement where he spent 

approximately 22 hours with neither pillow nor blanket” and 

was not allowed, despite requests, to contact anyone, including 

his parents or his attorney, and then officers interrogated him a 

second time. See id. Bonds contends that his isolation in the 

interrogation room contributed to a coercive environment, but 

his isolation bears little resemblance to that in Rettenberger. In 

this case, Bonds was by himself for only five hours while 

Detectives got to the station and gathered other information; for 

one of these hours, Bonds was escorted into a “break room” 

where he was allowed to sleep on a couch. Our supreme court 

has made clear that “five to six hour interrogations are not in 

and of themselves coercive.” Apodaca, 2019 UT 54, ¶ 42. Further, 

before confessing to the shooting, Bonds made no request to 

contact any other adult. While it may have been optimal for 

Detectives to have interviewed Bonds sooner, we cannot fault 

Detectives for wanting to speak with Wife and Girlfriend before 

speaking with Bonds, and we do not view the sequence of events 

that transpired in this case as unduly coercive.

¶34 Finally, Bonds faults Detectives for making appeals to his 

morality, family, and religion, and contends that those appeals

created a coercive atmosphere. But “appeals to a defendant’s 

sense of morality and responsibility are usually non-coercive,” 

Arriaga-Luna, 2013 UT 56, ¶ 21, and we see nothing coercive 

about Detectives’ appeals to Bonds’s faith or his admiration for 

his mother, a retired sheriff’s deputy. “The Fifth Amendment

privilege is not concerned with moral and psychological 

pressures to confess emanating from sources other than official 
State v. Bonds

20180238-CA 19 2019 UT App 156

coercion.” Berghuis v. Thompkins, 560 U.S. 370, 387 (2010)

(quotation simplified).

B. Subjective Factors

¶35 Bonds also contends that various subjective factors 

regarding his personal circumstances contributed to a coercive 

environment during the interview. “[U]nder the totality of 

circumstances analysis, courts must also consider such factors as 

the defendant’s mental health, mental deficiency, emotional 

instability, education, age, and familiarity with the judicial 

system.” Rettenberger, 1999 UT 80, ¶ 15. Bonds argues that 

Detectives took advantage of these personal or subjective 

characteristics, thus making his interrogation coercive. We view

the matter differently.

¶36 Bonds first asserts that Detectives were aware that he had 

been drinking heavily on the evening in question, and that 

Bonds described himself as “intoxicated” at the end of the 

interview. But according to Detectives, Bonds displayed no signs 

of being intoxicated or impaired, and our review of the interview 

video aligns with Detectives’ observations. Indeed, by the time 

Detectives interviewed Bonds, it had been at least five or six 

hours since he had last consumed any intoxicating substance. 

There is simply insufficient evidence that Bonds was too 

intoxicated to give voluntary responses to Detectives’ questions.

¶37 Bonds also contends that he was “exhausted” by the time 

Detectives interviewed him, and points out that he had obtained 

only fitful moments of sleep in the interview room, and then had 

one hour of presumably less-fitful sleep in the break room, and 

that by 7:00 a.m. he had essentially been up all night and was in 

no condition to speak with Detectives. We have no reason to 

doubt Bonds’s contention that he was very tired. But, at least 

after the first minute or two of the interview, Bonds appears 

fully awake and alert and able to cogently respond to questions, 

and we find no evidence in the record to support the contention 
State v. Bonds

20180238-CA 20 2019 UT App 156

that his fatigue was so severe that it led him to give answers to 

questions he would not have given in a more rested state.

¶38 Bonds points out that he had previously been diagnosed 

with bipolar disorder, and that mental illness is a factor that can 

lead to coercive interrogation. See id. ¶ 18 (“[A] confession may 

be suppressed in circumstances in which a police officer knows 

of a suspect’s mental illness or deficiencies at the time of the 

interrogation and effectively exploits those weaknesses to obtain 

a confession.”). But, as noted, Detectives saw no sign of any 

mental instability in Bonds during the interview, and Bonds 

acknowledges that he had not taken medication for his condition 

in over a year. On this record, Bonds has not persuaded us that 

his mental illness was severe enough to be exploitable by 

Detectives, or that Detectives exploited it in any event.

¶39 In this case, the actions of the police officers were not 

perfect. They could perhaps have moved Bonds from the 

interview room to the break room a bit sooner, to allow him to 

catch a bit more sleep. And they certainly could have—and 

should have—refrained from misrepresenting the evidence to 

Bonds by telling him that eyewitnesses had seen him shoot 

Victim, and that they did not know Victim’s current condition. 

But on balance, after considering the totality of the 

circumstances surrounding Bonds’s interrogation, see Apodaca, 

2019 UT 54, ¶ 46, we are not persuaded that Bonds’s free will 

was overborne. Accordingly, we conclude that the trial court did 

not err by denying Bonds’s motion to suppress his confession.

II. Ineffective Assistance of Counsel

¶40 Bonds next argues that his trial counsel rendered 

constitutionally ineffective assistance, in two respects: first, by 

failing to correct or object to the jury instruction that listed the 

elements of manslaughter, which misallocated the burden of 

proof regarding self-defense; and second, by failing to object to 
State v. Bonds

20180238-CA 21 2019 UT App 156

statements made by the prosecution that may have had the effect 

of equating Bonds’s silence with an admission of guilt.

¶41 In order to establish that his attorney provided ineffective 

assistance, Bonds must make a two-part showing: (1) that his 

attorney’s “performance was deficient in that it fell below an 

objective standard of reasonableness,” and (2) that his attorney’s 

deficient performance was “prejudicial,” meaning that “there is 

a reasonable probability that but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” 

State v. Miller, 2012 UT App 172, ¶ 9, 281 P.3d 282 (quotation 

simplified). We first address whether counsel performed 

deficiently, and then turn to the question of prejudice.

A. Deficient Performance

¶42 To show deficient performance, a “defendant must 

overcome the strong presumption that his trial counsel rendered 

adequate assistance, by persuading the court that there was no 

conceivable tactical basis for counsel’s actions.” State v. Clark, 

2004 UT 25, ¶ 6, 89 P.3d 162 (quotation simplified). “The 

defendant must overcome the presumption that, under the 

circumstances, the challenged action might be considered sound 

trial strategy.” Strickland v. Washington, 466 U.S. 668, 689 (1984) 

(quotation simplified). Because “[t]here are countless ways to 

provide effective assistance in any given case,” and “[e]ven the 

best criminal defense attorneys would not defend a particular 

client in the same way,” id., “only when no reasonable attorney 

would pursue the chosen strategy will we determine that 

counsel has been constitutionally ineffective,” State v. Roberts, 

2019 UT App 9, ¶ 29, 438 P.3d 885 (quotation simplified).

1

¶43 Bonds’s first complaint about his attorney’s performance 

is that his attorney failed to object to jury instructions that, 

collectively, spoke inconsistently about who bears the burden of 
State v. Bonds

20180238-CA 22 2019 UT App 156

proof for self-defense. Specifically, Bonds directs our attention to 

Jury Instruction No. 35, which set forth the elements of the lesser 

included offense of manslaughter. As noted above, that 

instruction stated that, before the jury could convict Bonds of 

manslaughter, it needed to find “beyond a reasonable doubt” 

that Bonds “acted in accordance with an imperfect self defense.” 

Bonds asserts—correctly—that this instruction misallocated the 

burden of proof with regard to self-defense.

¶44 Imperfect self-defense is a legal doctrine that, where 

applicable, operates to reduce a charge of murder to that of 

manslaughter, and applies 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 existing circumstances.” Utah Code Ann. 

§ 76-5-203(4)(a) (LexisNexis 2017); see also State v. Lee, 2014 UT 

App 4, ¶ 38, 318 P.3d 1164 (Voros, J., concurring) (“If, under the 

facts as [the defendant] reasonably believed them to be, he 

reasonably but incorrectly believed his actions were legally 

justifiable, he acted in imperfect self-defense.”). Imperfect selfdefense differs from ordinary (or “perfect”) self-defense in two 

primary respects: first, imperfect self-defense is only “a partial 

defense” that, where applicable, results only in reduction of a 

conviction from murder to manslaughter, whereas perfect selfdefense “is a complete defense to any crime” that, where 

applicable, results in acquittal, id. ¶¶ 36–37; and second, 

“imperfect self-defense applies when a defendant makes a 

reasonable mistake of law,” whereas “perfect self-defense applies 

when a defendant makes a reasonable mistake of fact,” id. ¶ 41. 

For example, a defendant who “was entitled to defend himself” 

but was “not entitled to use deadly force” may avail himself of 

the imperfect self-defense doctrine regarding his use of deadly 

force, at least insofar as he can show that his belief regarding the 

necessity of deadly force was reasonable, even if legally 

incorrect. See State v. Spillers, 2005 UT App 283, ¶ 25, 116 P.3d 
State v. Bonds

20180238-CA 23 2019 UT App 156

985, aff’d, 2007 UT 13, 152 P.3d 315; see also Lee, 2014 UT App 4, 

¶ 44 (Voros, J., concurring) (stating that an imperfect self-defense 

instruction would have been available had the defendant been 

arguing “that he reasonably believed that the circumstances 

justified his use of lethal force when in fact they justified only his 

use of non-lethal force”).

¶45 As with other self-defense doctrines, a criminal defendant 

is not obligated to prove that he acted in imperfect self-defense. 

Instead, “once a defendant has produced some evidence of 

imperfect self-defense, the prosecution is required to disprove 

imperfect self-defense beyond a reasonable doubt.” State v. 

Campos, 2013 UT App 213, ¶ 38, 309 P.3d 1160. “Because the 

burden of proof for an affirmative defense is counterintuitive, 

instructions on affirmative defenses must clearly communicate 

to the jury what the burden of proof is and who carries the 

burden.” Lee, 2014 UT App 4, ¶ 27 (quotation simplified).

¶46 Bonds contends that the jury instructions in this case, 

viewed collectively, gave the jury the wrong idea about who 

carried the burden of proof with regard to self-defense. Bonds 

acknowledges that both the general instruction about selfdefense (Instruction No. 48), as well as the specific instruction 

about imperfect self-defense (Instruction No. 51), both got it 

right, clearly stating that “[t]he defendant is not required to 

prove” that “self-defense applies,” and that it is the “State [that] 

must prove beyond a reasonable doubt that the defense does not 

apply.” But Bonds correctly points out that the governing jury 

instruction setting forth the elements of manslaughter 

(Instruction No. 35) was not as clear, telling the jury that, before 

it could convict Bonds of the lesser included offense of 

manslaughter, it needed to find “beyond a reasonable doubt” 

that Bonds “acted in accordance with an imperfect self defense.”

¶47 The State, with somewhat surprising vigor, attempts to 

defend this set of jury instructions, pointing out that both 
State v. Bonds

20180238-CA 24 2019 UT App 156

Instructions No. 48 and No. 51 correctly allocated the burden of 

proof, and noting that Instruction No. 35—the troublesome 

one—contained an explicit cross-reference directing the jury to 

Instruction No. 51, and concluding that “the instructions read 

together accurately stated the law.”

¶48 We might lend the State’s argument more credence, had 

we not rejected nearly-identical arguments three times in recent 

years. See State v. Garcia, 2016 UT App 59, ¶¶ 14–16, 370 P.3d 970, 

rev’d on alternate grounds, 2017 UT 53, 424 P.3d 171; Lee, 2014 UT 

App 4, ¶¶ 26–27; Campos, 2013 UT App 213, ¶¶ 37–43. In Campos, 

the imperfect self-defense instruction itself correctly set forth the 

burden of proof, but the verdict form submitted to the jury 

required the jury to find “beyond a reasonable doubt, that the 

defense of Imperfect Self Defense applies in this case.” 2013 UT 

App 213, ¶ 39 (emphasis omitted). We held that, despite the fact 

that the imperfect self-defense instruction “properly described 

the burden of proof,” the instructions to the jury, taken as a 

whole, were erroneous, because “the verdict form directly 

contradicted that instruction by asking the jury to find either that 

the affirmative defense had been disproved beyond a reasonable 

doubt, or that it had been proved beyond a reasonable doubt.” 

Id. ¶ 43 (emphasis omitted). In Lee, we were presented with an 

elements instruction nearly identical to the one at issue here, and 

we found the instructions improper. 2014 UT App 4, ¶ 27. And 

in Garcia, we were presented with a situation materially

indistinguishable from this one, in which the imperfect selfdefense instructions correctly allocated the burden of proof, but 

the elements instruction stated that “[b]efore you can find” the 

defendant guilty of manslaughter, “you must find beyond a 

reasonable doubt” that, among other things, “[t]he affirmative 

defense of imperfect-self defense does not apply.” 2016 UT App 

59, ¶ 14. We rejected the same argument the State makes here, 

stating that “dueling instructions—in conflict as to how the jury 

should consider the defense—cannot satisfy” the defendant’s 

“entitlement to a correct instruction.” Id. ¶ 16.
State v. Bonds

20180238-CA 25 2019 UT App 156

¶49 The State makes a last effort to defend the instructions 

here by referencing Instruction No. 35’s explicit cross-reference 

to Instruction No. 51. While we acknowledge that the 

instructions in Campos, Lee, and Garcia had no such explicit crossreference, we are unpersuaded that this distinction matters. Even 

without an explicit cross-reference, a jury that reads about 

imperfect self-defense in an elements instruction is likely to refer 

to the more specific instruction about imperfect self-defense. We 

are unpersuaded that the explicit cross-reference present in 

Instruction No. 35 is that much more effective than the implicit 

cross-references that were inherent in the instructions at issue in 

the other cases; at a minimum, we are unconvinced that this 

relatively minor factual difference is enough to render the other 

three cases inapplicable.6

 

6. The State also cites hopefully to State v. Nelson, 2015 UT 62, 355 

P.3d 1031, where our supreme court stated that jury instructions 

that “could have been slightly more accurate or more complete” 

but are nonetheless accurate, are not erroneous. Id. ¶ 47. But this 

general language does not help the State here, because in Nelson, 

the jury instructions were not inaccurate, and certainly did not 

misstate the burden of proof. See id. (“[T]he instructions . . .

directed the jury to reduce the relevant conviction by one degree 

if it found that the State had failed to disprove imperfect selfdefense.”). We have repeatedly held that “because the burden of 

proof required for affirmative defenses is counter-intuitive, the 

prosecution’s responsibility should be made plain to the jury,” 

State v. Campos, 2013 UT App 213, ¶ 42, 309 P.3d 1160 (quotation 

simplified), and have stated that “self-defense instructions . . .

must clearly communicate to the jury what the burden of proof 

is and who carries the burden,” id. (quotation simplified). Our 

supreme court had an opportunity, after Nelson, to weigh in on 

our Campos/Lee/Garcia line of cases when it reviewed the Garcia

case, but it opted to reverse our decision in Garcia on alternative 

(continued...)
State v. Bonds

20180238-CA 26 2019 UT App 156

¶50 But our conclusion that the jury instructions were 

erroneous does not necessarily mean that Bonds’s attorney 

performed deficiently by failing to object to them. See, e.g., 

Strickland v. Washington, 466 U.S. 668, 689 (1984) (“Even the best 

criminal defense attorneys would not defend a particular client 

in the same way.”); State v. Larrabee, 2013 UT 70, ¶ 19, 321 P.3d 

1136 (“If it can be shown that after thorough investigation of law 

and facts relevant to plausible options counsel made a strategic 

choice, then that choice is virtually unchallengeable.” (quotation 

simplified)); id. ¶¶ 27–28 (stating that “under certain 

circumstances, strategically refusing to object is an acceptable 

trial strategy” and “it can be a legitimate strategy to remain 

silent due to a fear of prejudice”). If, for instance, Bonds’s 

attorney had a strategic reason for wanting the jury instructions 

to contain that language, it would not necessarily be ineffective 

assistance for the attorney to fail to object. But in this case, the 

State mounts no argument (other than the one, rejected above, 

that the instructions are not erroneous) that a reasonable 

attorney might have elected to forgo an objection to these 

instructions, and in this situation we see no applicable strategic 

reason for Bonds’s attorney to prefer erroneous and confusing 

jury instructions regarding the burden of proof germane to 

affirmative defenses. Indeed, we think that a reasonable attorney 

would have lodged an objection to those instructions, especially 

in light of our holdings in Campos, Lee, and Garcia that the 

attorneys in those cases had performed deficiently by failing to 

object in very similar situations. See Garcia, 2016 UT App 59, ¶ 21 

(concluding that trial counsel “performed deficiently” by failing 

to object); Lee, 2014 UT App 4, ¶ 27 (stating that counsel has “a 

 

(...continued)

grounds, noting in passing that the jury instruction at issue in 

Garcia had indeed been incorrect. State v. Garcia, 2017 UT 53, ¶ 23 

n.5, 424 P.3d 171. In short, we do not view the court’s statement 

in Nelson as at odds with our rulings in Campos, Lee, and Garcia.
State v. Bonds

20180238-CA 27 2019 UT App 156

duty to object to such a fundamentally flawed instruction and to 

ensure that the jury was properly instructed on the correct 

burden of proof,” and concluding that trial counsel “performed 

deficiently in failing to object”); Campos, 2013 UT App 213, ¶ 45 

(“[T]rial counsel’s failure to object to the verdict form fell below 

an objective standard of reasonableness.”).

¶51 In short, we conclude that the jury instructions, taken 

together, misstated the burden of proof applicable to Bonds’s 

affirmative defense of imperfect self-defense, and that trial 

counsel performed deficiently by failing to object to them.

7

2

¶52 Bonds’s next complaint about his attorney’s performance 

is that the attorney failed to object to the State’s argument that, if 

Bonds had truly acted in self-defense, he would have said so to 

 

7. During oral argument before this court, counsel for the State 

chided us for never having set forth, in our previous decisions, 

an elements jury instruction for manslaughter in an imperfect 

self-defense situation that would pass muster. In response, we 

note simply that it is our task to review instructions given by 

trial judges in particular cases, not to draft or suggest new ones 

for general use by the bench and bar. Indeed, ably-staffed 

committees of lawyers and judges have already been formed for 

that purpose, and one of those committees recently generated 

suggested instructions and a proposed verdict form that may 

cover this situation. See Model Utah Jury Instructions 2d CR1411, 

CR1450, CR1451, CR 1452, SVF 1450 (Advisory Committee on 

the Model Utah Criminal Jury Instructions 2018), https://www.ut

courts.gov/resources/muji/ [https://perma.cc/2UA6-GDQN]. We 

have, of course, not yet been asked to weigh in on the propriety 

of those instructions and verdict form, and they are not at issue 

in this appeal.
State v. Bonds

20180238-CA 28 2019 UT App 156

the officers who arrested him at the convenience store at 2:17 

a.m. Bonds asserts that the introduction of this evidence, and the 

State’s use of it at trial, infringed on his Fifth Amendment right 

against self-incrimination.

¶53 “Generally, the prosecution may not refer to or elicit 

testimony concerning a defendant’s post-arrest silence.” State v. 

Reyes, 861 P.2d 1055, 1057 n.2 (Utah Ct. App. 1993); see also 

Mitchell v. United States, 526 U.S. 314, 330 (1999) (stating that the 

Fifth Amendment protections against compulsory 

self-incrimination prohibit “an inference of guilt from a 

defendant’s rightful silence”). The State makes little effort to 

defend the propriety of its own trial tactics in this regard, 

acknowledging that, had Bonds’s trial counsel lodged an 

objection to the State’s introduction of this evidence, “[c]ounsel 

may very well have been able to keep the officer’s testimony on 

the subject out.”

¶54 But the State does contend that Bonds’s trial counsel may 

have had strategic reasons for not objecting to the officer’s 

testimony about Bonds’s post-arrest silence. The State notes that 

Bonds had three post-shooting encounters with people ((i) his 

conversation with Wife and Girlfriend immediately after the 

shooting; (ii) his telephone conversation with his friend; and (iii) 

his encounter with the arresting officers at the convenience 

store), and in none of those encounters did Bonds say anything 

about having shot Victim in self-defense. The State therefore 

posits that Bonds’s attorney was “still facing the prospect of 

explaining why [Bonds] said nothing about defending his family 

to two other witnesses,” and therefore could reasonably have 

determined, for strategic reasons, to address the matter through 

the officer’s testimony.

¶55 We find the State’s argument unconvincing. As Bonds 

correctly points out, the other two conversations were with 

civilians, not with police, and consisted of very short 
State v. Bonds

20180238-CA 29 2019 UT App 156

discussions. It is a lot easier to explain why Bonds did not 

mention self-defense to the friend he called to ask for a ride than 

it is to explain why Bonds did not mention to arresting officers—

who have the ability to deprive him of his freedom—that he had 

some justification for shooting Victim. And it is a lot easier to 

explain why Bonds did not mention self-defense on two 

occasions than it is to explain why he did not mention it on three 

occasions. The State does not explain why it would have been 

better, from a strategic perspective, to address the issue through 

the arresting officer’s testimony rather than through Girlfriend’s 

testimony or through the friend’s testimony. We are unable to 

discern any reason why reasonable counsel would have failed to 

object to the arresting officer’s testimony about Bonds’s silence, 

and we think a reasonable attorney would have done so. 

Accordingly, we conclude that Bonds’s attorney performed 

deficiently by failing to object to introduction of that evidence.

B. Prejudice

¶56 Because we have determined that Bonds’s trial attorney 

rendered deficient performance in two particular respects, we 

must now turn to the question of whether the attorney’s 

deficient performance prejudiced Bonds. Deficient performance 

is prejudicial to a defendant only when “there is a reasonable 

probability that but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” State v. 

Miller, 2012 UT App 172, ¶ 9, 281 P.3d 282 (quotation simplified). 

In this context, the “‘reasonable probability’ standard” is less 

exacting than “the more demanding ‘more likely than not’ 

standard.” Tillman v. State, 2005 UT 56, ¶ 29 n.7, 128 P.3d 1123 

(quoting Strickler v. Greene, 527 U.S. 263, 297–300 (1999) (Souter, 

J., concurring and dissenting)), superseded in part by statute on 

other grounds as stated in Gordon v. State, 2016 UT App 190, 382 

P.3d 1063. The reasonable probability standard is “more akin to 

a ‘significant possibility’ of a different result.” Id. (quotation 

simplified). There is a “reasonable probability of a different 
State v. Bonds

20180238-CA 30 2019 UT App 156

result” when a court’s “confidence in the outcome of the trial” is 

undermined. Id. ¶ 29 (quotation simplified); see also Strickland v. 

Washington, 466 U.S. 668, 694 (1984) (“A reasonable probability is 

a probability sufficient to undermine confidence in the 

outcome.”). In this case, because we have identified two 

instances of deficient performance, we analyze the prejudice 

issue in cumulative fashion, see State v. Campos, 2013 UT App 

213, ¶ 61, 309 P.3d 1160 (applying “the doctrine of cumulative 

prejudice” in a similar situation), with the relevant overarching 

question being this one: if the jury had been instructed correctly 

as to the burden of proof regarding self-defense, and if it had not 

heard the officer’s testimony and the prosecutor’s argument 

about Bonds’s silence while being arrested, is there a significant 

possibility that the result of the trial would have been different?

¶57 The State asserts that we can answer this question in the 

negative, because “the evidence against [Bonds] was 

overwhelming,” and because the facts of this case do not support 

any claim of self-defense, whether perfect or imperfect. While 

the evidence supporting Bonds’s self-defense claim is hardly 

crystal clear, in our judgment there is sufficient evidence of selfdefense to cause us significant unease about the role counsel’s 

decisions might have played in the outcome of the trial.8

¶58 In his interview with Detectives, Bonds described a scuffle 

between him and Victim where Victim attempted to grab the 

gun from Bonds, the gun fell to the ground and discharged, and 

Bonds shot Victim as soon as he recovered the gun. As Bonds 

 

8. We note some strategic tension between Bonds’s two 

arguments on appeal. The best evidence supporting Bonds’s 

claim of self-defense came from Bonds’s own interview with 

Detectives. Had Bonds succeeded in suppressing the interview, 

the evidence supporting a self-defense claim would have been 

extremely scant.
State v. Bonds

20180238-CA 31 2019 UT App 156

described it, Victim “said some crazy shit” during the 

altercation, and specifically threatened to “shoot this whole 

house and these kids.” Bonds told police that Victim’s threats to 

his family caused Bonds to become enraged and to vow that 

“nobody gonna hurt my kids.” Certainly, a credible threat that 

someone is planning to shoot a person’s children can give that 

person reason to defend against that threat. Indeed, the jury in 

this case was instructed—in an instruction to which no one 

objected—that “[a] person is justified in threatening or using 

force against another when and to the extent that the person 

reasonably believes that force or a threat of force is necessary to 

defend the person or a third person against another person’s 

imminent use of unlawful force.” (Emphasis added.)

¶59 The State asserts, however, that the evidence cannot 

support a determination that Bonds’s self-defense belief was 

reasonable. The State correctly points out that Bonds had already 

wrested the gun away from Victim by the time Bonds shot him, 

and that Bonds shot Victim in the back, indicating that Bonds 

himself was not at that point under any credible threat from 

Victim. And the State asserts that there is no evidence to support 

the notion that Victim was running toward either Bonds’s 

apartment (where Wife and Girlfriend were) or toward Bonds’s 

mother-in-law’s apartment (where Bonds’s children were).

¶60 But the State overstates it. We agree with the State that the 

evidence on this point is far from clear; indeed, the fullest 

description of Victim’s behavior at the time of the shooting 

comes from Bonds’s own statement to police that Victim was 

running “towards the back like where the apartments is at, like 

where the parking at, where the trash can is at.” While the 

record contains a map of the apartment complex and its 

surroundings, there are no markings on the map indicating 

where Victim was when he was shot or the direction Victim was 

running. From our review of the trial transcript, it appears that 

the State had each witness reference the map using a laser 
State v. Bonds

20180238-CA 32 2019 UT App 156

pointer (rather than a pen or marker), leaving no clear record for 

us to review on appeal. But Bonds’s statement could be 

interpreted to mean that Victim was running toward “where the 

apartments is at,” and the State’s current position on appeal—

that there is no evidence to support the notion that Victim was 

running toward one of the apartments—is belied by the 

prosecutor’s statement during closing argument that he was “not 

going to dispute” that Victim “ran in [the] direction” of motherin-law’s apartment. Moreover, even if the State were correct, and 

there really were no evidence that Victim was running toward 

the apartments, Bonds shot him before he had been able to run 

more than a few feet, and we think it perilous to ascribe too 

much weight to the apparent direction of Victim’s movement.

¶61 The State also sensibly points out that, after Bonds 

successfully won the struggle for the gun, Victim had no other 

weapon and was unarmed, and therefore was not at that point 

capable of shooting Bonds’s children as he had allegedly 

threatened to do. But even a person without a gun is capable of 

visiting great harm upon children, and Bonds may have 

reasonably believed that Victim, despite no longer having 

possession of a gun, still might harm his children.

¶62 And this is where imperfect self-defense comes into play. 

In situations where an individual reasonably believes that he 

needs to defend himself or others, but may not have been 

entitled to use deadly force in so doing, we have determined that 

imperfect self-defense is available. See State v. Spillers, 2005 UT 

App 283, ¶ 25, 116 P.3d 985 (stating that, where the evidence 

supported “an interpretation that [Spillers] was entitled to 

defend himself . . . but not entitled to use deadly force,” the 

defendant was entitled to argue imperfect self-defense), aff’d, 

2007 UT 13, 152 P.3d 315; Lee, 2014 UT App 4, ¶ 41 (Voros, J., 

concurring) (“We learn from Spillers that a defendant is entitled 

to an instruction on imperfect self-defense if a jury could 

conclude from the evidence that he reasonably but incorrectly 
State v. Bonds

20180238-CA 33 2019 UT App 156

believed he was justified in using lethal force against a nonlethal attack.”). In addition, Bonds may also have made a 

different legal error: as his attorney stated at oral argument 

before this court, Bonds may have believed that Victim 

presented a threat to his children, if not necessarily an 

immediate one, and could have incorrectly (but reasonably) 

believed that he was justified in using immediate force to stop a 

non-immediate threat.

¶63 In this case, Bonds had some decent (if not totally 

convincing) arguments regarding self-defense, and specifically 

regarding imperfect self-defense. In a situation like this, the 

instructions regarding the burden of proof on self-defense issues 

might have mattered. It is certainly a lot easier for a jury to 

conclude that self-defense has not been established beyond a 

reasonable doubt than it is for a jury to determine that the State 

has disproven self-defense beyond any reasonable doubt. And 

the additional evidence about Bonds’s silence upon being 

arrested—while probably not prejudicial on its own—

constituted another improper item on the State’s side of the 

ledger. It is also worth noting that, in this case, the jury 

deliberated for over ten hours, and acquitted Bonds of one

felonious discharge of a firearm count, perhaps indicating that it 

credited his account of how the first shot was fired. See State v. 

Richardson, 2013 UT 50, ¶ 44, 308 P.3d 526 (reasoning that a split 

verdict can be an indication that “the jury was conflicted about 

the evidence,” and that therefore errors committed during trial

might have made a difference).

¶64 In the end, we conclude that a reasonable probability 

exists that, had the jury received proper instructions and had the 

State’s inference of guilt from Bonds’s silence been kept from the 

jury, the jury’s decision regarding self-defense and manslaughter 

may have been different and, accordingly, our confidence in the 

outcome has been undermined. Both errors went to the strength 

of Bonds’s self-defense argument. Therefore, we conclude that, 
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20180238-CA 34 2019 UT App 156

on the record before us, Bonds was prejudiced by his attorney’s 

deficient performance.

CONCLUSION

¶65 The trial court did not err in denying Bonds’s motion to 

suppress the police interview, in which he confessed to shooting 

Victim but claimed to have done so in defense of his children. 

But Bonds’s trial attorney rendered ineffective assistance by 

failing to object to an incorrect and inconsistent set of jury 

instructions, and by failing to object to introduction and use of 

evidence about Bonds’s silence while being arrested, and we 

have sufficient unease about the prejudicial effect of these errors 

to justify a new trial. Accordingly, we reverse all of Bonds’s 

convictions—except for his conviction for possession of a firearm 

by a restricted person, which Bonds does not challenge here—

and remand this matter for a new trial.