2021 UT App 85

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

VIENPHET SUNDARA,

Appellant.

Opinion

No. 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, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES DAVID N. MORTENSEN and DIANA HAGEN

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 appeals, alleging 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.
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BACKGROUND1

The Crime

¶2 On the evening of May 18, 1991, Victim was attending a 

dance held for the benefit of the Laotian community. The dance 

was held at a community center in Salt Lake City, Utah. Victim, 

who had allegedly punched Sundara’s older brother about a 

month before, was described as being “afraid,” “scared,” and 

“nervous” during the dance. 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 him 

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 brother (Brother) were also outside at this point 

and heard Victim and 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 

Brother grabbed his left. Friend 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 light 

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.
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“running towards 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-looking liquids on [Victim’s] shirts.” The friend ran

toward Victim, and Victim uttered, “[T]hey stabbed me.” The 

friend tried to catch Victim as he collapsed and noticed that 

Victim’s shirt was soaked with blood. An off-duty police officer 

(Sergeant), who was working security at the dance, came to 

where Victim was lying on the ground. Victim died 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 descent.

 

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 

Everything from Egypt to China as Well as Rugs, Wash. Post (May 

13, 2016), https://www.washingtonpost.com/news/morningmix/wp /2016/05/13/the-long-history-and-slow-death-of-a-wordused-to-describe-everyone-from-turks-to-the-chinese/ 

[https://perma.cc/4YBU-9GZ4].
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¶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

Officer stopped the car 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. Sundara 

was driving the car, and Brother 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 

addition, police confirmed Sundara’s true identity by using his 

photo identification.

The Evidence

¶8 Officer “notice[d] some dry but still relatively fresh blood 

on the clothing, the hands, and on the face” of Sundara. Officer 

also saw “a large knife with a significant 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 swabs, along with samples from Sundara’s clothing, tested 

positive for human blood. Bloodstains on Friend’s and Brother’s 

clothes also tested positive for human blood.

¶10 A test of the blood on the knife revealed that it matched 

Victim’s blood type and enzyme type in a grouping that

 

3. This comment was made by Officer at the preliminary 

hearing, and at this 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.
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occurred in about 1 in 26 individuals in the Asian population. 

Significantly, a fingerprint lift was taken from the blade of the 

knife. But due to technological limitations in 1991, the analyst 

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 Is 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 twice, and then that he stabbed him twice.” 

When asked to repeat the story the next day, Friend said that he

“held [Victim] down while his friend stabbed him twice.” Friend 

was arrested at that time, but the record does not indicate if he 

was prosecuted in 1994.

¶14 In 2014, 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 from 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 

recovered from the knife matched Sundara’s fingerprint.
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¶16 DNA testing was also performed on the blood evidence. 

Bloodstains on Sundara’s shirt and pants matched Victim’s DNA 

profile with a statistical frequency of 1 in 157 quintillion4for the 

Asian population. The DNA analyst 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 million for the Asian 

population.

¶17 While the knife itself did not test positive 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 million for the Asian population.

¶18 As part of the new investigation, police interviewed 

Sundara in Oklahoma, where 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 known Victim but 

had heard rumors that he had been stabbed. 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 was “gangster 

fighting” going on.

 

4. A quintillion is a number equal to a one followed by eighteen 

zeros. See Number, Webster’s Third New Int’l Dictionary (2002).
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¶19 Sundara was charged with murder for Victim’s death. 

Friend was also charged with murder, but he entered 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, all the jurors were asked,

“Do you have an expectation that there must be scientific or 

forensic 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 “Yes” to this 

question. He explained his answer: “So like, it’s more of a 

preference. I can [vote to convict] based 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 convict. 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 trial, 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 third day of trial, 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, 
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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 Juror 

1 was serving on the jury. Moreover, the prosecutor did not 

know if Juror 1 was aware of the police investigation, but he felt 

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 three concerns about allowing 

Juror 1 to continue 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, the prosecutor was also concerned that Juror 1’s answer

of “No” to Question 22 on the jury questionnaire regarding 

whether the potential juror or any member of his family had 

ever been accused 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 where 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 Counsel opposed removing Juror 1, arguing that it was 

speculative whether he was aware of the investigation: “[I]t 

appears at least on the strength 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 this is an ongoing 
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investigation . . . .” Insofar as trial strategy was concerned, 

Counsel argued that removing Juror 1 impacted the way he 

would have selected jurors: “This is a juror that I wanted to 

serve and consciously used my [peremptory] challenges [to that 

end]. . . . I intended that the people who were alternates be 

alternates . . . . And I used my challenges accordingly. And now 

to take him out for something that . . . may or may not be the 

case, I think would be unfair to Mr. Sundara.”

¶26 The prosecutor and Counsel 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 would not be 

served while at the courthouse, 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 to the proceedings of this case” and that 

he might “discuss 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 disqualify him 

from serving as a juror.”

¶28 After articulating its reasoning and acknowledging 

Counsel’s objection, the court determined that “the best course” 
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was to excuse Juror 1 and have the first alternate, Juror 31, 

“serve in his stead.”5 The trial proceeded.

The Flight Instruction

¶29 Counsel also objected to a jury 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 

establish 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 Model Utah Jury Instructions 2d CR405 (2018), 

https://www.utcourts.gov/resources/muji/inc_list.asp?action=sho

wRule&id=32#405 [https://perma.cc/6GHL-WNJP].

¶30 Specifically, Counsel argued that the instruction implied 

that Sundara “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.”
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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, Counsel 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 the jury would rely only on

the fact that Sundara “was in the vehicle” that allegedly “fled 

from the scene of the crime . . . to establish guilt beyond a 

reasonable doubt.”

¶31 Following a four-day trial, the jury found Sundara guilty 

of murder, and the court sentenced him to a prison term of five 

years to life. He appeals.

ISSUES AND STANDARDS OF REVIEW

¶32 Sundara first contends that Counsel 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 App 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 a 
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20190399-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 simplified).

¶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 Juror 1 might be served with a protective order

during the trial. We review a court’s decision to replace a juror 

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 (quotation simplified).

6

ANALYSIS

I. The Stop

¶36 Sundara first argues that Counsel 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 the “cumulative effect of multiple 

errors was prejudicial.” But “there 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).
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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 show 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 To 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 

tactical decisions and will not question such decisions unless 

there is no reasonable basis supporting them.” State v. Clark, 2004 

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

deficient performance is not determined in a vacuum; rather, it 

involves asking whether the strategy counsel employed was that 

of a reasonable, 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 

unreasonable.” 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 the 
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20190399-CA 14 2021 UT App 85

vehicle stop on the night of the murder would have inevitably 

failed because Officer had reasonable 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 deficiency 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 the Fourth Amendment to the United States 

Constitution guarantees the right of citizens to be free of 

“unreasonable searches and seizures,” see U.S. Const. amend. IV,

an investigatory stop is constitutionally permissible if it is 

supported by a “reasonable, articulable suspicion,” see State 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.” Id.

(quotation simplified). However, reasonable 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, 2005 UT 26, ¶ 11, 112 P.3d 507 (quotation 

simplified).
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20190399-CA 15 2021 UT App 85

¶40 The facts here were sufficient to support a conclusion that 

reasonable suspicion justified 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 “that, 

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 in 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 

Camry on a specific dead-end street.” Id. ¶¶ 5–6, 52. “[W]ithin a 

minute or two of receiving the description,” the officer arrived at

the street and found a Hispanic male wearing dark clothes and 

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 of 
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20190399-CA 16 2021 UT App 85

travel, all occurring 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 threshold 

of reasonable suspicion justifying Officer’s stopping of Sundara’s 

car, and “a reasonable, competent lawyer . . . in the realtime 

context of trial” could have concluded that Officer had received 

sufficient information to form a reasonable suspicion and 

decided not to 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, in his rule 23B motion, Sundara argues that facts not 

contained in the record “establish the deficient performance and 

prejudice necessary to show” that Counsel’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 

challenged the stop on the ground that the “tip . . . was 

anonymous, unverified, and uncorroborated.” We 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.”
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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 officer’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) corroboration 

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 all highly relevant in 

determining the value of” an anonymous tip (quotation 

simplified)). Moreover, an informant’s tip 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 these factors to the allegations in the affidavit, 

we conclude that the information Sergeant received about 

Sundara and his companions was reliable. First, 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 citizeninformants.” Id. ¶ 11. And “veracity is generally assumed when 

the information 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. 
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20190399-CA 18 2021 UT App 85

App. 1987) (quotation simplified). Second, “although the 

[unknown person] did not 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 that 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 [unknown person] and observed that 

the vehicle’s occupants matched the [person’s] descriptions

enhanced the reliability of [the] account.” See id. ¶ 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 

any jurors who are unable to perform or who are disqualified 

from performing their duties” and that alternate jurors “must 
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20190399-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, the 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 

performing his duties on the jury.

¶49 It is within the trial court’s discretion to determine 

whether a juror is disqualified from serving. State v. Granados, 

2019 UT App 158, ¶ 39, 451 P.3d 289 (stating that trial courts 

“have considerable discretion” in determining whether a juror 

should be disqualified and whether to replace that juror with an 

alternate). And “we will find that a trial court has abused its 

discretion only if the trial court’s decision was beyond the limits 

of reasonability” such “that no reasonable person would take the 

view adopted by the trial court.” State v. Arguelles, 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 faced 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 his answer without tainting 

him; knowledge that he was being investigated for criminal 

activity may have biased 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, there 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 legal troubles with other jurors.
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20190399-CA 20 2021 UT App 85

¶51 Our supreme court has emphasized 

that trial judges should err on the side of caution 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 another 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 harmed 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, 2002 UT 86, ¶ 47, 55 P.3d 573

(quotation simplified). Sundara has not 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 Even 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 jury 
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20190399-CA 21 2021 UT App 85

under the Sixth Amendment, see U.S. Const. amend. VI.

Accordingly, we reject Sundara’s contention that Juror 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. “It 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, not 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 Instruction

¶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 

instruction was improper because 
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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 is only 

useful to explain the inferences 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 that 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 the evidence suggested that 

Sundara left the scene “after the commission of the crime.” See id.

(quotation simplified).

¶59 Sundara cites State v. Howland, 761 P.2d 579 (Utah Ct. 

App. 1988), for the proposition that “confusing and 

unnecessary” flight instructions 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. The 
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20190399-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, arrested, 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 flight instruction, but this court determined that the flight 

instruction was erroneous because “no flight occurred after 

commission of the crime charged.” Id. Thus, the reason that the 

flight instruction in Howland was “confusing and unnecessary” is 

that it misled the jury “into 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. Because 

there was no evidence (namely, a post-crime flight) supporting 

the flight instruction, the instruction in Howland was erroneous. 

The fact pattern here is just the opposite—flight occurred right 

after the commission of the charged crime. So the very 

circumstance that made the flight instruction “confusing and 

unnecessary” in Howland is altogether absent 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 

flight 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.
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20190399-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 Estates

LLC, 2016 UT App 131, ¶ 30, 379 P.3d 18 (“We 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 

assistance 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 that Counsel 

was ineffective, and accordingly, 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.