Does prosecutorial misconduct occur when calling a witness who invokes Fifth Amendment privilege? State v. Bond Explained

In State v. Bond, the Utah Supreme Court addressed several critical issues surrounding prosecutorial conduct, constitutional violations, and the standards of review for unpreserved claims in criminal appeals.

Background and Facts

Martin Bond and Benjamin Rettig planned to steal guns from Kay Mortensen’s home in Payson. During the robbery, they zip-tied and murdered Mortensen, then bound his son and daughter-in-law before fleeing with approximately twenty stolen guns. Prior to Bond’s trial, Rettig pled guilty and agreed to testify against Bond. However, when called to testify, Rettig invoked his Fifth Amendment privilege despite receiving immunity from the state. The prosecutor was permitted to ask leading questions, which Rettig answered initially but then refused to answer more detailed questions about the crimes.

Key Legal Issues

Bond raised three challenges: (1) prosecutorial misconduct for calling Rettig knowing he would invoke his privilege, warranting mistrial; (2) Confrontation Clause violations from the prosecutor’s leading questions when Bond could not effectively cross-examine; and (3) ineffective assistance of counsel for failing to move for merger of the aggravated kidnapping and murder convictions.

Court’s Analysis and Holding

The court rejected all three arguments. First, no prosecutorial misconduct occurred because the immunity grant provided a legitimate basis for calling Rettig, and the prosecutor demonstrated efforts to elicit actual testimony rather than simply highlighting the privilege invocation. Second, the court clarified that defendants bear the burden of demonstrating prejudice for unpreserved federal constitutional claims under plain error review, rejecting Bond’s argument that the burden should shift to the state for constitutional violations. Bond failed to show the leading questions were harmful since they largely duplicated evidence already presented. Third, counsel was not ineffective for failing to move for merger because the 2008 amendment to Utah Code section 76-5-202(5) explicitly provides that aggravating circumstances constituting separate offenses do not merge with aggravated murder.

Practice Implications

This decision establishes important precedent regarding the burden of proof for unpreserved constitutional claims and provides guidance on when prosecutors may legitimately call witnesses who may invoke privileges. The court’s clarification that defendants retain the burden to demonstrate harm under plain error review, even for constitutional violations, harmonizes the standards between plain error and ineffective assistance doctrines. Practitioners should carefully evaluate whether immunity grants provide sufficient legal basis for compelling testimony and ensure thorough preservation of constitutional objections at trial.