2021 UT App 85



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

S TATE OF U TAH , Appellee
, v. V IENPHET S UNDARA , Appellant

. Opinion N o. 20190399

- CA Filed August 12, 2021

Third District Court, Salt Lake Department The Honorable Todd M. Shaughnessy

No. 161900600

Nathalie S. Skibine , Attorney for Appellant Sean D. Reyes and Jeffrey D. Mann , Attorney s

for Appellee

J UDGE M ICHELE M. C HRISTIANSEN F ORSTER authored th is Opinion
, in which J UDGES D AVID N. M ORTENSEN and D IANA H AGEN concurred.

CHRISTIANSEN FORSTER , Judge:

¶1 In a case that had gone unresolved for many years, Vienphet Sundara was convicted in 2019 of a 1991 murder after police reopened their investigation based on modern forensic techniques. Sundara appeal s, a lleging that his trial counsel rendered ineffective assistance and that the trial court erred in dismissing a juror and in giving a flight instruction . We affirm.State v. Sundara

20190399

- CA 2 2021 UT App 85 BACKGROUND 1

The Crime

¶2 On the evening of May 18, 1991, Victim was attending a dance held for the b enefit of the Laotian community . The dance was held at a community center in Salt Lake City, Utah. Victim, who had allegedly p unched Sundara’s older brother about a month before, was described as being “afraid,” “scared,” and “nervous” during the danc e. A friend advised Victim to remain inside at a table among his other friends if he was concerned about his safety because nobody would “do anything” to h im with all his friends nearby.

¶3 At around midnight, Victim and two friends left the table and went outside the community center

. One friend stood outside to smoke a cigarette, the other friend went to a nearby convenience store to use the payphone, and Victim went to find

a spot nearby to urinate

. Sundara’s friend (Friend) and Sundara’s other b rother (Brother) we re also outside at this point and heard Victim an d Sundara arguing. Friend and Brother walked over to the place of the argument, at which point Brother said, “Grab him.” Friend grabbed Victim’s right arm, and B rother grabbed his left. Fr iend thought Sundara was going to just punch Victim, but Sundara pulled out a knife, which Friend described as a “Rambo knife.” Sundara stabbed Victim and ran from the scene with Friend and Brother

.
¶4 About the same time , one of Victim’s friends heard a “commotion” that involved “screaming, yelling, like a scuffle.” He looked over to see Victim under a streetlight with men

1

. “ On appeal, we recite the facts from the record in the l ight
most favorable to the jury’ s verdict and present conflicting evidence only as necessary to understand issues raised on appeal .” State v. Daniels , 2002 UT 2, ¶ 2, 40 P.3d 611.State v. Sundara

20190399

- CA 3 2021 UT App 85 “ running toward s him, as if they were chasing someone.” After a moment, the men chasing Victim “ran back towards the side of the building.” Victim’s friend noticed that “there were some muddy

- look ing liquids on [Victim’s] shirts .” The frien d ran toward Victim, and Victim uttered , “[T]hey stabbed me.” The frie n d tried to catch Victim as he collapsed and n oticed that Victim’ s shirt was soaked with blood. An off

- duty police officer (Se r geant) , who was working security at the dance , came to where Victim was lying on the ground. Victim die d at the scene.
The Stop

¶5 At 12:19 a

. m

. on May 19 , Sergeant radioed to report that there had been a stabbing at the community center. He reported that the suspects were “male Orientals” 2 who were traveling westbound in a vehicle of unknown description on 1300 South toward 300 West

.
¶6 An officer (Officer), who was patrolling nearby, heard Sergeant’s radio dispatch and responded. At 12:21 a

. m

. , Officer

saw a “light

- colored car with three male Asians” traveling northbound on 300 West and turning right on 900 South , less than a mile from the community center

. Officer testified that the traffic was very light at that hour and he saw no other vehicles occupied by individuals of Asian de sc ent

.

2 . We recognize that this term is offensive and antiquated, but we use it here because it was used in communications leading to the stop. See generally Yanan Wang, The Long History and Slow Death of a Word Once Used to Describe Everyone and E verything from Egypt to China as Well as R ugs , Wash. Post (May 13, 2016), http s://www.washingtonpost.com/news/morning

mix/wp /2016/05/13/the

- long

- history

- and

- slow

- death

- of

- a

- word

used

- to

- describe

- everyone

- from

- turks

- to

- the

- chinese/ [https://perma.cc/4YBU

- 9GZ4].State v. Sundara

20190399

- CA 4 2021 UT App 85 ¶7 “Based on the proximity to the area, the proximity in time, and the fact that the suspects and the car were a match,” 3 Of ficer stopped the ca r on the collector ramp to I

- 15 located at 900 South and West Temple

. Officer also testified that the “sole basis for stopping” the car was his “suspicion of its involvement in the stabbing” and not for a pattern of illegal driving. S undara was driving the car , and Brot her and Friend were passengers. Sundara initially gave police officers a false name, but Victim’s friend was brought to the scene and identified the three individuals as those involved in the earlier altercation . In addi tion, police confirmed Sundara’ s true identity by using his photo identification.

The Evidence

¶8 O fficer “notice[d] some dry but still relatively fresh blood on the clothing, the hands, and on the face” of Sundara. Officer also s aw “ a large knife with a sign ificant amount of blood on it ” on the rear floor of the car.

¶9 Sundara, Brother, and Friend were arrested. The clothing of the three men was seized for forensic analysis. In addition, police swabbed blood stains located on Sundara’s face and hand. These swab s , along with samples from Sundara’s clothing, tested positive for human blood

. Blood stains on Friend’s and Brother’s clothes also t ested positive for human blood.

¶10 A test of the blood on the knife revealed that it matched Victim’s blood type and enzyme typ e in a grouping th at

3

. This comment was made by Officer at the preliminary hearing, and at t his point in the testimony, he had mistakenly said Sergeant had radioed that the suspects were “three male Asians” traveling in a “light

- colored vehicle.” In fact, Sergeant had not specified the number of suspects or the color of their vehicle.State v. Sundara

20190399

- CA 5 2021 UT App 85 occurred in about 1 in 26 individual s in the Asian population

. Significantly, a fingerprint lift was taken from the blade of the knife. But due to technological limitations in 1991, the anal yst was unable to make a match.

¶11 An autopsy of Victim revealed that he suffered three stab wounds

— two in the back and one in the lower neck. The wound to the neck “was the fatal injury.” The wounds were consistent with wounds that would have been caused by a “ single

- edge blade” like the knife found in the car Sundara was driving.

¶12 After the investigation in 1991, no charges were filed
, and the case went unresolved

.
The Case I

s Reopened

¶13 In a 1994 FBI investigation involving another matter, Friend told an undercover agent that he had been involved in a murder at the community center “a few years ago.” Friend claimed that he and another man “held [Victim] down and his friend stabbed him twi ce, and then that he stabbed him twice.” When asked t o repeat the story the next day , Friend said that h e “held [ Victim ] down while his friend stabbed him twice.” Friend was arrested at that time, but the record does not indicat e if he was prosecuted in 19 94.

¶14 In 201 4 , police reopened the murder investigation and reexamined the blood samples, knife, and fingerprint using current forensic techniques.

¶15 A new fingerprint analyst examined the print that was lifted fr om the knife . This examiner determined that the print was “ a comparable print,” meaning that it was of “the highest quality” and would yield an “ID or an exclusion.” Identifying thirteen unique characteristics on the print, the analyst stated that she was “confident” in her conclusion that the print

re covered from the knife matched Sundara’s fingerprint.State v. Sundara

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- CA 6 2021 UT App 85 ¶16 DNA testing was also performed on the blood evidence. Blood stains on Sundara’s shirt and pants matched Victim’s DNA profile with a statistical frequency of 1 in 157 quintillion 4 for the Asian population

. The DNA an alyst testified that numbers in the “sextillion or . . . quintillion ” range are so “ massive ” that “ the likelihood of . . . getting another profile that’ s exactly the same, [is] astronomical. ” Bloodstains on Friend’s pants matched Victim’s DNA with a frequency of 1 in 1.09 mi llion for the Asian population.

¶17 While the knife itself did not test p ositive for blood when the case was reopened, the adhesive tape used to lift the fingerprint retained “a bloodstain that was also taken when they took the fingerprint lift” in 1991. The DNA profile from the fingerprint

- lift bloodstain matched that of Victim with a statistical frequency of 1 in 1.09 mi llion for the Asian population.

¶18 As part of the new investigation, police interviewed Sun dara in Oklahoma, whe re he resided. Sundara admitted he had been at the community center for the dance and had borrowed his father’s car that evening. He recalled giving Friend a ride home. Sundara claimed that he had not know n Victim but had heard rumors that he had been stab bed

. Sundara remembered being pulled over and suggested that the knife belonged to his father, who used the car for fishing and camping trips . When confronted with evidence that the knife and his clothes from that night tested positive for Victim’s DNA, Sundara suggested that “somebody” did “something stupid
, ” like “throw the knife in [his] car. ” He also said that “a lot of people got a lot of blood that day ” because there wa s “gangster fighting” going on.

4

. A quinti llion is a number equal to a one followed by eighteen

zeros. See Number , Webster’s Third New Int’l Dictionary (2002).State v. Sundara

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- CA 7 2021 UT App 85 ¶19 Sundara was charged with murder for Victim’s deat h. Friend was also charged with murder, but he en tered into an agreement with the State and was allowed to plead guilty to manslaughter in exchange for testifying at Sundara’s trial.
Jury Selection

¶20 The court seated eight jurors and two alternates. We highlight the selection of two jurors because they play an important role in the disposition of this case.

¶21 During the selection process, a ll the jurors were asked , “Do you have an expectation that there must be scientific or fo rensic evidence presented in a case before you could make a decision related to the guilt or innocence of a person when the case relates to a Homicide?” Juror 1 answered “Y es” to this question. He explained his answer : “So like, it’ s more of a preference. I can [vote to convict] base d off of, like, you know, other evidence, but I prefer more like forensic.” But Juror 1 clarified that despite that preference, if the testimonial evidence was sufficient, he would be willing to vote to c onvict. Juror 31 , who was selected as the first alternate, answered “No” to the question.
The Protective Order and Replacement with an Alternate

¶22 Near the end of the second day of tri a l, the parties and the court learned that someone was trying to serve Juror 1 with a protective order. All parties agreed that if the juror were to be served while at court, coming to the court , or leaving the court , such an event might have a significant impact on the trial

.
¶23 At the beginning of the thi rd day of tri a l, the judge met in chambers with defense counsel (Counsel) and the prosecutor. The prosecutor had learned that the protective order was related to an “ongoing harassment and revenge porn case” and “some type of physical abuse ” that could result in a “potential felony
,State v. Sundara

20190399

- CA 8 2021 UT App 85 sexual assault.” The detective assigned to the protective order case had “insisted [ the alleged victim] come and obtain a protective order for her safety.” (Quotation simplified.) Based on the information available to the prosecutor, it was unclear whether the alleged criminal behavior had occurred while J uror 1 was serving on the jury. Moreover, t he prosecutor did not know if Juror 1 was aware of the police investigation , b ut he fe lt it was safe to “ assume that he [ was ] unaware of the protective order.” Indeed, the court had been informed that Juror 1 had not been served with the protective order at that time.

¶24 The prosecutor expressed t hree concerns about allowing Juror 1 to continu e as a juror . First, “[g]iven the fact that at any point in time [Juror 1] could be served anywhere, he could be served tonight, and that may

. . . infect the rest of the jury pool

. ” Second, t he prosecutor was also concerned that Juror 1 ’s answer of “ N o” to Q uestion 22 on the jury questionnaire regarding whether the potential juror or any member of his family had ever been accuse d of a crime other than a minor traffic violation may have been false. And third, being served could impact Juror 1’s ability to focus and “concentrate on the case at hand.” The prosecutor summed up his concerns by saying, “[T]he thing that we all don’t want to have happen here is a mistrial. And if he were to say something to the entire jury pool, we would then be in a situation w here we’ d have to start all over again, and we’re trying to prevent that from happening when we know that this inevitably will happen.” Given these concerns, the prosecutor moved that Juror 1 be removed.

¶25 C o unsel opposed removing Juror 1, arguing that it wa s speculative whether he was aware of the investigation: “[I] t appears at least on the str ength of what we have before us , he doesn’ t know about [the investigation ] . I don’ t think he answered the question falsely at all. There’s nothing in the reports that I’ ve seen, there’s nothing in the petition that would indicate that he’ s aware that t his is an ongoingState v. Sundara

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- CA 9 2021 UT App 85 investigation

. . . .” Insofar as trial s trategy was concerned, C ounsel argued that removin g J uror 1 impacted the way he would have selected jurors: “ This is a juror that I wanted to serve and consciously used my [per em ptory ] challenges [to that end].

. . . I intended that the people who were alt ernates be alternates . . . . And I used my challe nges accordingly. And now to tak e him out for something that . . . may or may not be the case, I think would be unfair to Mr. Sundara

. ”

¶26 The prosecutor and C ounsel agreed that any attempt to interview Juror 1 about his knowledge of the investigation would “ taint him . . . by the mere fact of bringing him in.”

¶27 The court ultimately excused Juror 1 for two reasons

. First, while the court was confident that Juror 1 w ould not be served while at the court house , it reasoned, “he could be served at home at any point during the course of the trial and we would not necessarily have any way of knowing whether he ’ d been served or not.” If he were to be served with the protective order , the court was concerned that Juror 1 “would not be able to devote his full attention t o the proceedings of this case” and that he might “discus s this issue [of the protective order] with other members of the jury.” Second, the court was concerned that it could not “meaningfully inquire” of Juror 1 whether he

“ correctly” answered Question 22 “without disclosing to him the existence of the protective order or the existence of the investigation” and “potentially having to advise him of his rights”

— events that “everyone agree [ d ] would disqualif y him from serving as a juror.”

¶28 After articulating i ts reasoning and a cknowledging C ounsel’s objection, the court determined that “the best course”State v. Sundara

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- CA 10 2021 UT App 85 was to excuse Juror 1 and have the first alternate, Juror 31 ,

“ serve in his stead.” 5 The trial proceeded

.

The Flight Instruction

¶29 C ounsel also objected to a jur y instruction on flight. The instruction, which is identical to Model Utah Jury Instruction CR405, read ,
Evidence was introduced at trial that the defendant may have fled or attempted to flee from the crime scene. This evidence alone is not enough to establ ish guilt. However, if you believe that evidence, you may consider it along with the rest of the evidence in reaching a verdict. It’s up to you to decide how much weight to give that evidence.
Keep in mind that there may be reasons for flight that could be fully consistent with innocence. Even if you choose to infer from the evidence that the defendant had a “guilty conscience,” that does not necessarily mean he is guilty of the crime charged.

See M odel Utah Jury Instructions 2d CR405 ( 2018 ), https://www.ut courts.gov/resources/muji/inc_list.asp?action=sho wRule&id=32#405 [https://perma.cc/ 6GHL

- WNJP ]

.
¶30 Specifically, C ounsel argued that the instruction implied that Su ndara “was at the crime scene, ” “that he knew that the

5 . Juror 1 was told in private that he was dismissed at the end of the third day of the trial. The remaining jurors were informed of his departure the following morning. The court told the jurors, “Juror No. 1 has been excused. You should not concern yourself with the reasons for that or consider those

— or that fact at all in the context of your deliberations.”State v. Sundara

20190399

- CA 11 2021 UT App 85 crime occurred,” and that “he was on his way out of there to escape,” when his presence at the crime scene was “a fact that’s in dispute. ” Additionally , C ounsel argued that “all the evidence

. . . at this point is that there was a car that was described to have three [individuals of Asian descent] in it, and it was stopped at a different location than the [community center]. All that other stuff is almost a judicial instruction that a crime occurred.” The prosecutor argued, “There was evidence that these three individuals fled the scene in a vehicle and were stopped by police at a different location than the homicide scene. As such, that would constitute flight from the crime scene. ” The court agreed and overruled the objection, noting that without the instruction, there was a “risk” that t he jury would rely only on the fact that Sundara “was in the vehicle” that allegedly “fled from the scene of the crime . . . to establish gu ilt beyond a reasonable doubt.”

¶31 Following a four

- day trial , the jury found Sundara guilty of murder , and the court s entenced him to a pr ison term of five years to life. He appeals.

ISSUES AND STANDARDS OF REVIEW

¶32 Sundara first contends that C ounsel performed ineffectively when he did not file a motion to suppress evidence obtained from the traffic stop. “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.” State v. Ramirez , 2019 UT A pp 196, ¶ 13, 455 P.3d 1082 (quotation simplified).

¶33 Second, Sundara has filed a rule 23B motion for a remand to supplement the record on appeal with evidence supporting his claim of ineffective assistance of counsel. See Utah R. App. P. 23B

. “A remand under rule 23B is available only upon aState v. Sundara

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- CA 12 2021 UT App 85 nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective.” Ramirez , 2019 UT App 196, ¶ 13 (quotation simpl ified)

.
¶34 Third , Sundara argues that the trial court erred when it dismissed Juror 1 and replaced him with an alternate juror after it learned that J uror 1 might be served with a protective order during the trial

. We review a court’s decision to replace a ju ror with an alternate for abuse of discretion. Cf. State v. Granados , 2019 UT App 158, ¶ 39 , 451 P.3d 289 ( explaining, in the context of discussing how to handle sleeping jurors, that “ district courts have considerable discretion in determining how best to resolve the issue ” ).

¶35 Fourth , Sundara asserts that the trial court erred in giving the flight instruction. “We review the trial court’s decision to give a flight instruction for correctness.” State v. LoPrinzi , 2014 UT App 256, ¶ 10, 338 P.3d 253 (quotatio n simplified)

. 6

ANALYSIS

I. The Stop

¶36 Sundara first ar gues that C ounsel was ineffective for not filing a motion to suppress the evidence obtained from the investigatory stop. “ To ensure a fair trial, the Sixth Amendment of the U.S. Constitution guarantees the right to effective assistance of counsel. ” State v. Campos , 2013 UT App 213, ¶ 23,

6

. Sundara also argues that th e “cumulative effect of multiple errors was prejudicial.” But “t her e are no errors to accumulate here, rendering the cumulative error doctrine inapplicable in this case.” State v. Wilkes , 2020 UT App 175, ¶ 20 n.3, 479 P.3d 1142 (quotation simplified).State v. Sundara

20190399

- CA 13 2021 UT App 85 309 P.3d 1160. A claim of ineffective assistance has two prongs. “First, the defendant must show that counsel ’ s performance was deficient. . . . Second, the defendant must s how that the deficient performance prejudiced the defense.” Strickland v. Washington , 466 U.S. 668, 687 (1984). “ Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address [Sundara’s ] claims under either prong.” See Honie v. State , 2014 UT 19, ¶ 31, 342 P.3d 182. Here, because we conclude that Counsel did not perform deficiently, we limit our analysis to the first prong.

¶37 T o show that Counsel performed deficiently, Sundara must overcome the presumption that Counsel’s decision not to file a motion to suppress “falls within the wide range of reasonable professional assistance.” See Strickland , 466 U.S. at 689. “The court gives trial counsel wide latitude in making
tact ical decisions and will not question such decisions unless there is no reasonable basis supporting th em.” State v. Clark , 2004 UT 25, ¶ 6, 89 P.3d 162 (quotation simplified). “Moreover, deficient per formance is not determined in a vacuum ; rather, it involves asking whether the strategy counsel employed was that of a reas onable, competent lawyer in the real

- time context of the proceeding.” State v. Rosen , 2021 UT App 32, ¶ 9 , 484 P.3d 1225 (quotation simplified)

. And “even where a court cannot conceive of a sound strategic reason for counsel’s challenged conduct, it does not automatically follow that counsel was deficient. . . . [T]he ultimate question is always whether, considering all the circumstances, counsel’ s acts or omissions were objectively

unr easonable.” State v. Scott , 2020 UT 13, ¶ 36, 462 P.3d 350; see also State v. Ray , 2020 UT 12, ¶ 36 , 469 P.3d 871 (“ A reviewing court must always base its deficiency determination on the ultimate question of whether counsel’s act or omission fell below

an objective standard of reasonableness. ”)

.
¶38 Here it was objectively reasonable for Counsel to believe that any motion to suppress the evidence obtained from theState v. Sundara

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- CA 14 2021 UT App 85 vehicle stop on the night of the murder would have inevitably failed because Officer had reasonabl e suspicion to stop Sundara’s car. And “ the failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance .” State v. Alzaga , 2015 UT App 133, ¶ 73, 352 P.3d 107 (quotation simplified) ; see also State v. Makaya , 2020 UT App 152, ¶ 9, 476 P.3d 1025 (“ A futile motion necessarily fails both the deficie ncy and prejudice prongs of the Strickland analysis because it is not unreasonable for counsel to choose not to make a motion that would not have been granted, and forgoing such a motion does not prejudice the outcome.”).

¶39 While t he Fourth Amendment to the United States C onstit ut ion guarantees the right of citizens to be free of “unr easonable searches and seizures, ” see U.S. Const. amend. IV
, an investigatory stop is constitutionally permissible if it is supported by a “ reasonable, articulable suspicion ,” s ee S tate v. Anderson , 2013 UT App 272, ¶ 12, 316 P.3d 949 (quotation simplified). And “ a police officer has reasonable, articulable suspicion when the officer is able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.” I d. (quotation simplified). However, r easonable suspicion for an investigatory stop is “ more than merely an inchoate and unparticularized suspicion or hunch that a defendant is connected to potentially criminal activity. Instead, reasonable suspicion requires a particularized and objective basis, supported by specific and articulable facts.” State v. Jervis , 2017 UT App 207, ¶ 18, 407 P.3d 1072 (quotation simplified). Moreover, “ when reviewing a given factual situation to determine if reasonable suspicion justified a detention, courts must view the articulable facts in their totality and avoid the temptation to divide the facts and evaluate them in isolation.” State v. Markland , 2 005 UT 26, ¶ 11, 112 P.3d 507 (quotation simplified).State v. Sundara

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- CA 15 2021 UT App 85 ¶40 T he facts here were sufficient to support a conclusion that reasonable suspicion justif ied the stop of Sundara’s vehicle

. For example, in State v. Markland , 2005 UT 26, 112 P.3d 507, a deputy responded to a 3:14 a.m. report of screaming near an apartment complex. Id. ¶ 2 . Arriving a few minutes later, the deputy spotted the suspect walking alone with two bags toward a dead end of a poorly lit street. Id . Our supreme court explained “th at, viewing the facts in their totality and considering the rational inferences drawn from those facts, [the deputy’s] detention of [the suspect] . . . was justified at its inception by a reasonable suspicion that crime was afoot and that [the suspect] was connected to that crime. ” Id. ¶ 21. The court cited as a “critical fact” in the case “ a contemporaneous report of suspicious circumstances in the area in which [the suspect] was detained.” Id. ¶ 25.

¶41 And i n State v. Gallegos , 2018 UT App 192, 437 P.3d 388, aff’d
, 2020 UT 19 , 463 P.3d 641, an “ officer was instructed, based on eyewitness accounts, to look for Hispanic males ,” who had fled the scene of an assault , “ wearing white clothes in a Toyota Camr y on a specific dead

- end street .” Id. ¶ ¶ 5

– 6 , 52. “[ W ] ithi n a minute or two of receiving the description ,” the officer arrived at the street and found a Hispanic male wearing dark clothes a nd standing with two women near a Toyota Camry. Id. ¶ 52. This court concluded that the matching elements of the description

were “ articulable facts giving rise to reasonable suspicion that [the suspect]

— who [was] Hispanic and was right next to the Camry, on the dead

- end street, minutes after the officer had received the report

— was involved with the fleeing suspects. ” Id. ¶ 54.

¶42 Here , Officer had received radio dispatch of (1) a contemporaneous report of criminal activity at the community center, (2) a general description of the fleeing suspects as male individuals of Asian descent , (3) a specific location and direction of travel (heading west on 1300 South), and (4) the mode ofState v. Sundara

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- CA 16 2021 UT App 85 travel, all occ urr ing shortly after midnight

— a time when there were few people driving in the area. These facts in their totality, along with reasonable inferences from them, meet the th reshold of reasonable suspicion justifying Officer ’s stop ping of Sundara’ s car, and “ a reasonable, competent lawyer

. . . in the realtime
context of trial” could have conclude d that Officer had received sufficient information to form a reasonable suspicion and decided not t o challenge the stop on that basis. See State v. Wall , 2020 UT App 168, ¶ 16, 479 P.3d 355 (quotation simplified)

. Accordingly, we conclude that Sundara’s claim of ineffective assistance fails because Counsel did not render deficient performance by not seeking to suppress evidence found during the stop

.
II. The Rule 23B Motion

¶43 Next, i n his rule 23B motion, Sundara argues that facts not contained in the record “establish the deficient performance and prejudice necessary to show ” that Counse l’s failure to file a motion to suppress constituted ineffective assistance of counsel. Specifically, Sundara seeks to supplement the record with a police report that states that the information police received that the suspects were leaving westbound on 1300 South was provided merely by “some unknown person” 7 (Quotation simplified.) The gist of Sundara’s motion is that “a tip from an unknown source does not establish reasonable suspicion” and that Counsel, who was aware of the police report, should have

c hallenged the stop on the ground that the “tip . . . was anonymous, unverified, and un corroborated.” W e deny Sundara’s motion because even if the facts in the affidavit are

7

. In his police report, Sergeant wrote that he was talking to the driver of another vehicle leaving the area shortly after the stabbing when “some unk person yelled that the susp ’s were leaving W/B on 1300 S.”State v. Sundara

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- CA 17 2021 UT App 85 true, they do not support a determination that Counsel was ineffective. See State v

. Higley , 2020 UT App 45, ¶ 24, 463 P.3d 77 (“ The facts alleged [in a rule 23B motion] must be supported by affidavits and, when assumed to be true, must establish both elements of a traditional ineffective

- assistance claim.” (quotation simplified)).

¶44 “It is well

- established in this state that the articulable facts supporting reasonable suspicion may come from an office r’ s own observations as well as external information such as an informant’ s tip via police dispatch . . . .” State v. Kohl , 2000 UT 35, ¶ 13, 999 P.2d 7. And Utah courts have articulated a three

- factor framework for analyzing whether an informant’s tip provides a basis for reasonable suspicion : “ (1) the reliability of the informant, (2) the detail of the information, and (3) co rroboration of the tip by the officer’s own observations.” Salt Lake City v. Street , 2011 UT App 111, ¶ 7, 251 P.3d 862 ; see also Illinois v. Gates , 462 U.S. 213, 230 (1983) (agreeing that “ an informant’ s veracity, reliability and basis of knowledge are al l highly relevant in determining the value of” an anonymous tip (quotation simplified) ). Moreover, a n informant’s t ip is not reviewed in isolation but is considered in the context of “the totality of the circumstances.” See Street , 2011 UT App 111, ¶ 7 (quotation simplified)

.
¶45 Applying the se factors to the allegations in the affidavit , we conclude that the information Sergeant received about Sundara and his companions was reliable . F irst, the tip was not anonymous but made by an unidentified person who presumably witnessed Sundara and his companions leaving.

“ [T]ipsters who are merely unidentified may still be considered highly reliable if the facts indicate that they are citizen

informants. ” Id. ¶ 11. And “ veracity is generally assumed when the informat ion comes from an average citizen who is in a position to supply information by virtue of having been a crime victim or witness.” State v. Miller , 740 P.2d 1363, 1366 (Utah Ct.State v. Sundara

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- CA 18 2021 UT App 85 App. 1987) (quotation simplified). Second, “although the [unknown person] did n ot provide extensive detail regarding the suspected criminal activity, the detail [that person] did provide was sufficient to support a reasonable suspicion ” because the information concerned the location and direction of travel of the suspects’ vehicle th at was consistent with the location of the stabbing

. See Street , 2011 UT App 111, ¶ 13. Third, the information regarding the direction of the travel of the suspects was consistent with Sergeant’s own observations at the scene of the crime. Sergeant knew the perpetrators were leaving the community center as evidenced by the fact that he had already stopped another vehicle that was leaving. See supra note 7

. Moreover, “ the fact that [Officer] discovered the vehicle in the location pointed out by the [unknow n person] and observed that the vehicle’s occupants matched the [person’s] descriptions enhanced the reliability of [the] account. ” See i d. ¶ 15.

¶46 In sum, even if the additional facts Sundara seeks to add to the record are true, they do not support a determination that Counsel was ineffective for not seeking to suppress evidence found after Sundara’s vehicle was stopped and searched

. Accordingly, we deny his rule 23B motion.

III. The Dismissal of Juror 1

¶47 Sundara next contends that the trial court erred when it replaced Juror 1 with an alternate juror. Sundara argues that the defense “wanted [Juror 1] to serve” and had “consciously used peremptory challenges” to seat Juror 1. ( Quotation simplified.)

¶48 Rule 17(g ) of the Utah Rules of Criminal Procedure provides, “ If a juror becomes ill, disabled or disqualified during trial and an alternate juror has been selected, the case shall proceed using the alternate juror. ” Utah R. Crim. P. 17(g)

. And rule 18(f) provides that alternate jurors are impaneled “ to replace

an y jurors who are unable to perform or who are disqualified from performing their duties” and that alternate jurors “mustState v. Sundara

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- CA 19 2021 UT App 85 have the same qualifications and be selected and sworn in the same manner as any other juror.” Id. R. 18 ( f )

. Concerning these rules, th e question confronted by the trial court was whether Juror 1, because of the potential that he would be served with a protective order during the trial , would be “disqualified” from per forming his duties on the jury.

¶49 It is within the trial court’s discreti on to determine whether a juror is disqualified from serving. State v. Granados , 2019 UT App 158, ¶ 39, 451 P.3d 289 (stating that trial cour t s

“ have considerable discretion” in determining whether a juror should be disqualified and whether to replac e that juror with an alternate). And “we will find that a trial court has abused its dis cretion only if the trial court’ s decision was beyond the limit s of reasonability” such “that no reasonable person would take the view adopted by the trial court.” State v. A rguelles , 2003 UT 1, ¶ 101, 63 P.3d 731 (quotation simplified) ; accord Shurtleff v. United Effort Plan Trust , 2012 UT 47, ¶ 13, 289 P.3d 408.

¶50 Here , the trial court’s decision to dismiss Juror 1 was in no way unreasonable. The court was presented with a unique set of circumstances. It learned that Juror 1 face d the imminent service of a protective order concerning alleged criminal activity. This circumstance created a conundrum for the court. On the one hand , it raised the possibility that Juror 1 had answered the juror questionnaire untruthfully . But both parties agreed that the court could not ask Juror 1 about hi s answer without tainting him; k nowledge that he was being investigated for criminal acti vity may have bias ed that juror against the State because the State would investigate and screen any potential charges against him. On the other hand, doing nothing was not a viable option for the court. If Juror 1 had been served with a protective order during the trial , ther e was a danger that the effect of being served would prevent him from devoting his full attention to the trial or that he might discuss his le gal troubles with other jurors.State v. Sundara

20190399

- CA 20 2021 UT App 85 ¶51 Ou r supreme court has emphasized
that trial judges should err on the side of caut ion in ruling on for

- cause challenges and that the scope of judicial discretion accorded a trial judge must be evaluated in light of the ease with which all issues of bias can be dispensed by the simple expedient of replacing a questionable juror with anot her whose neutrality is not open to question.

State v. Saunders , 1999 UT 59, ¶ 51, 992 P.2d 951. That is precisely the course the trial court embraced here. Erring on the side of caution, the court determined that the risk of Juror 1 being disqualified (by becoming aware of the investigation either by being asked about his answer to the questionnaire or by being served with the protective order) was too great. Thus, we discern no error in the court’s determination that the “best course” was to replace Juror 1 with an alternate.

¶52 Moreover, even if the trial court improperly replaced Juror 1, Sundara has not shown how he was h armed by this action. Our supreme court has stated, “ Even upon finding that a trial court erroneously excluded a juror for cause, we will not reverse the jury verdict if we find the error was harmless

. To show prejudice, appellant must demonstrate that the jury that actually sat for the trial was in some way partial or incompetent. ” State v. Calliham , 20 02 UT 86, ¶ 47, 55 P.3d 573 ( quotation simplified ) . Sundara has no t attempted to show that the jury with the alternate was partial or incompetent. Not only did Sundara pass the jury panel for cause, but there is nothing in the record to suggest that the alternate was in any way biased or incompetent

.
¶53 E ven though Sundara suggests that he specifically wanted Juror 1 to serve on the jury, “[d]efendants are not entitled to a jury of any particular composition , ” Taylor v. Louisiana , 419 U.S. 522 , 538 (1975) ; rather , they are entitled to an impartial juryState v. Sundara

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- CA 21 2021 UT App 85 under the Sixth Amendment
, see U.S. Const. amend. VI. Accordingly, we reject Sundara’s contention that J uror 1 should not have been excused because he was specifically chosen

— owing to his expressed preference for forensic evidence

— as being favorably inclined to Sundara’s defense. “I t must always be remembered that a party, even in a criminal case, is not entitled to a jury which is favorable

. . . , but only to one which is fair and impartial . The right to an impartial jury is one of rejection and not of selection .” United States v. Kline , 221 F. Supp. 776, 782

– 83 (D. Minn. 1963); see also Press

- Enterprise Co. v. Superior Court , 464 U.S. 501, 510 n.9 (1984 ) (“ The [jury selection] process is to ensure a fair impartial jury, not a favorable one.”) ; United States v. Gjokaj , 555 F. App’x 581, 586 (6th Cir. 2014) (“[The] defendant’s perception that the dismissed juror was favorable to his defense does not mean he was prejudiced by replacing her with the impartial alternate. [The] defendant had the right to an impartial jury , no t a favorable one. ” (quotation simplified))

.
¶54 In sum, we conclude that the trial court did not exceed its discretion in dismissing Juror 1 and replacing him with the alternate after it learned of the imminent service of the protective order.

IV. The Flight Inst ruction

¶55 Lastly, Sundara presents a bifurcated argument that the flight instruction given by the court was improper.

¶56 Sundara first contends that the flight instruction was improper under existing law because the only evidence of flight

— Friend’s testimony that the men ran after the stabbing

— was direct, making the flight instruction “confusing and unnecessary.” Put another way, Sundara argues that the flight in struction was improper becauseState v. Sundara

20190399

- CA 22 2021 UT App 85 [t]he jury did not need an instruction about how to draw inferences from this direct evidence. . . . The jury did not need guidance to infer that stabbing someone and running away is evidence of guilt.

. . . [Friend] offered direct, not circumstantial, evidence of Sundara’s guilt. A flight instruction i s only useful to explain the inference s of flight as circumstantial evidence of guilt

.
¶57 But the giving of a flight instruction is not predicated on the evidence of flight being necessary to assist the jury in making an inferential leap. “ Flight instructions are proper when supported by the evidence, meaning the instructions bear a relationship to evidence reflected in the record.” State v. LoPrinzi , 2014 UT App 256, ¶ 25, 338 P.3d 253 (quotation simplified). And

“ a flight instruction bears a relationship to the evidence reflected in the record if the flight occurred after the commission of the crime charged.” Id. (quotation simplified).

¶58 Here, there is no question that evidence supported the prosecution’s theory tha t Sundara fled the scene. Friend testified explicitly that the three men ran away shortly after the stabbing. In addition, Sundara himself stated that he was at the community center and was later stopped by the police. Moreover, there is no question that t he evidence suggested that Sundara left the scene “after the commission of the crime.” See i d. (quotation simplified).

¶59 Sundara cites State v. Howland , 761 P.2d 579 (Utah Ct. App. 1988), for the proposition that “confusing and unnecessary” flight instructio ns are erroneous and likely to mislead the jury. Id. at 581. But the fact pattern in Howland makes that decision of little relevance to this case . In Howland , the defendant had an altercation with a restaurant manager near the store’s dumpster. Id. at 580. Having lost the “boxing match,” the defendant ran away, with the manager in pursuit. Id. TheState v. Sundara

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- CA 23 2021 UT App 85 manager caught up to the defendant and wrestled him to the ground, at which point the defendant pulled out a knife. Id. The defendant was then disarmed, a rrested, and charged with attempted aggravated assault. Id. But he was not charged with simple assault for the scuffle at the dumpster. Id. The lower court gave a fl ight instruction, but this court determined that the flight instruction was erroneous becau se “no flight occurred after commission of the crime charged.” Id. T hus, t he reason that the flight instruction in Howland was “confusing and unnecessary” is that it misled the jury “i nto believing that the incident at the dumpster area

— at most a simple assault and a threat of future harm to persons other than [the manager]

— met the elements of the crime charged, i.e., aggravated assault.” Id

. at 581

. B ecause there was no evidence (namel y, a post

- crime flight) supporting the flight instruction, the instruction in Howland was erroneous. T he fact pattern here is just the opposite

— flight occurred right af ter the commission of the charged crime. So the very circumstance that made the flight i nstruction “confusing and unnecessary” in Howland is altogether ab sent in the case here

.
¶60 Sundara ’s second argument is that where the defense has objected to the giving of a flight instruction, we should “reconsider [our] precedent sanctioning ” them. More forcefully, Sundara argues that we “should hold that flight instructions are disfavored and overrule precedent sanctioning flight instructions any time evidence of flight could be tied to consciousness of guilt.” However, Utah Supreme Court precedent approving flight instructions is abundant. See State v. Franklin , 735 P.2d 34, 39 (Utah 1987) (“ [W]hen there is ample evidence to justify a flight instruction, it is not error to give one so long as it instructs the jury that there might be reasons for fl ight that are fully consistent with innocence of the crime charged and that even if consciousness of guilt is inferred from flight, it does not necessarily reflect actual guilt.”)
, overruled on other grounds by State v. Robertson , 2017 UT 27, 438 P.3d 491 ; accord State v. Bales , 675 P.2d 573, 575 (Utah 1983) ; see also State v.State v. Sundara

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- CA 24 2021 UT App 85 Fairclough , 44 P.2d 692, 697 ( Utah 1935) (approving the use of a flight instruction)

. And this court lacks the authority to overrule Utah Supreme Court precedent

. See Ortega v. Ridgewood Est ate s LLC , 2016 UT App 131, ¶ 30, 379 P.3d 18 (“W e are bound by vertical stare decisis to follow strictly the decisions rendered by the Utah Supreme Court.” (quotation simplified)).

¶61 Because there was evidence Sundara fled after the stabbing occurred, we conclude there was no error in the court providing a flight instruction to the jury . And we remain bound by our supreme court’s precedent on this point.

CONCLUSION

¶62 We conclude that Counsel did not render ineffective

ass istance when he did not file a motion to suppress evidence obtained from Officer’s stop of Sundara ’s vehicle . We also deny Sundara’s rule 23B motion because the additional evidence he seeks to admit does not support a determination th at Counsel was ineffective , and a ccordingly, a motion to suppress would not have succeeded . Finally, we find no error in the trial court’s decision to replace Juror 1 with an alternate juror and to instruct the jury on flight . Affirmed.