Taylor v. State

2007 UT 12
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Von Lester Taylor, 	No. 20040262
Plaintiff and Appellant,
v.
F I L E D
State of Utah,
Defendant and Appellee. 	January 26, 2007
---
Third District, Salt Lake
The Honorable Frank G. Noel
No. 990902315
Attorneys: 	Richard P. Mauro, Salt Lake City, for plaintiff
Mark L. Shurtleff, Att’y Gen., Thomas Brunker,
Erin Riley, Asst. Att’ys Gen., Salt Lake City, for
defendant
---
DURHAM, Chief Justice:
INTRODUCTION
¶1 	This case comes before us as an appeal from the
district court’s summary judgment order denying death row inmate
Von Lester Taylor’s petition for relief under the Post-Conviction
Remedies Act (PCRA). 	Taylor argues that he is entitled to post-
conviction relief primarily because he received ineffective
assistance of counsel from both his trial and appellate counsel.
Specifically, he argues that appellate counsel was ineffective
for failing to (1) challenge Taylor’s guilty plea; (2) conduct a
mitigation investigation or challenge trial counsel’s failure to
investigate and present mitigation evidence; (3) challenge the
jury instructions; (4) challenge the voir dire procedure;
(5) challenge trial counsel’s behavior during jury selection;
(6) challenge the trial court’s failure to order competency
hearings; (7) challenge the admission of hearsay evidence at
sentencing; (8) raise a claim of prosecutorial misconduct; and
(9) raise various constitutional challenges to his death

No. 20040262 	2
sentence. 	We address each of Taylor’s claims in turn and
ultimately affirm the district court’s order of summary judgment.
BACKGROUND
¶2 	In December 1990, Taylor escaped from a halfway house
where he was housed while on parole following a prison term for
aggravated burglary. 	Thereafter, Taylor and an accomplice,
Edward Steven Deli, broke into the Tiede family cabin while the
family was away. 	When Mrs. Kay Tiede returned to the cabin with
her daughter, Linae Tiede, and her mother, Beth Potts, Taylor and
Deli ordered them upstairs, tied them up, and killed Kay Tiede
and Beth Potts. 	During the shooting, Linae started praying, but
Taylor told her to stop because he was a “Devil worshiper.”
Taylor and Deli then told Linae to pack a suitcase so she could
leave with them.
¶3 	Mr. Rolf Tiede and his daughter Ticia Tiede returned to
the cabin shortly after the shootings. 	Upon their arrival,
Taylor ordered them into the garage, told Rolf Tiede to remove
his clothing, and stole $105 from his wallet. 	Although Rolf
Tiede complied with all of Taylor’s orders, Taylor shot him.
After being shot, Rolf Tiede played dead, but Taylor returned and
shot him in the head at point blank range, doused him in
gasoline, and lit the cabin on fire. 	Taylor and Deli then fled
the cabin with Linae and Ticia as hostages, stole Rolf Tiede’s
car, and led police on a high speed chase with the girls in the
car before finally being caught and arrested. 	Rolf Tiede
survived the ordeal.
¶4 	After Taylor’s arrest, Elliot Levine (trial counsel)
was appointed as his defense attorney. 	Taylor eventually pled
guilty to two counts of criminal homicide for the murders of Kaye
Tiede and Beth Potts in exchange for the State’s agreement to
drop the remaining charges. 	The case proceeded to the penalty
phase in May 1991. 	The jurors unanimously sentenced Taylor to
death. 	In addition, the jurors unanimously found that the State
had proven, beyond a reasonable doubt, that Taylor had committed
the aggravating crimes of (1) attempted criminal homicide;
(2) aggravated arson; (3) aggravated kidnaping; (4) aggravated
robbery; (5) theft; (6) failure to respond to an officer’s
signal; and (7) possession of a firearm by a person on parole. 	A
month after being sentenced, Taylor filed a motion to withdraw
his guilty plea. 	The trial court denied the motion.
¶5 	In October 1991, Taylor, through trial counsel, filed a
notice of appeal with this court. 	Thereafter, Taylor fired his
trial counsel, and the district court appointed Bruce Savage

3 	No. 20040262
(appellate counsel) to represent Taylor. 	Appellate counsel filed
a motion under rule 23B of the Utah Rules of Appellate Procedure
with this court to remand to the district court for fact finding
regarding Taylor’s ineffective assistance of counsel claim. 	This
court granted the motion.
¶6 	The rule 23B hearing was held in May 1995. 	At the
hearing, appellate counsel argued that trial counsel had provided
ineffective assistance of counsel because (1) trial counsel’s
closing argument reflected his personal theory that the role of
defense counsel was to encourage a defendant to admit his
wrongdoing; (2) trial counsel advised Taylor that the evidence of
the dismissed charges would not be raised in the penalty phase,
and Taylor relied on this advice when pleading guilty; and
(3) trial counsel’s compensation from the State was so inadequate
that he was not able to devote the necessary time and effort to
this case or conduct an adequate mitigation investigation,
thereby creating a conflict between his personal financial
interests and Taylor’s interests.
¶7 	The 23B court rejected Taylor’s claims for ineffective
assistance of counsel. 	Specifically, the court found that
(1) trial counsel’s closing argument did not reflect his personal
belief, but was a strategic move designed to gain the jury’s
sympathy; (2) trial counsel did not advise Taylor that no
evidence of the dismissed charges would be raised at the penalty
phase; and (3) trial counsel’s meager compensation, alone, was
insufficient to support a claim for ineffective assistance of
counsel. 	In addition to the above findings, the district court
noted that even if trial counsel had been ineffective for failing
to conduct an adequate mitigation investigation, Taylor had not
demonstrated prejudice because he could not show a “reasonable
probability” that the jury would have reached a different outcome
if trial counsel had not committed the alleged errors.
¶8 	Taylor, who continued to be represented by appellate
counsel, appealed to this court. 	In State v. Taylor (Taylor I),
947 P.2d 681 (Utah 1997), we affirmed the 23B court’s findings,
holding that (1) the court did not err in finding that trial
counsel had not misinformed Taylor about the scope of the penalty
phase, id. at 685-86; (2) the court did not err in concluding
that trial counsel “did not actually believe a defense attorney
should help his client admit to his wrongdoing,” id. at 686;
(3) Taylor’s inadequate compensation claims “failed to
demonstrate an actual conflict of interest,” id. at 688; and
(4) Taylor “failed to identify deficiencies in [trial counsel’s]
performance,” particularly in his closing argument, that “had any
apparent effect on the outcome of his penalty trial,” id.

No. 20040262 	4
¶9 	After this court decided Taylor I, the district court
appointed Richard Mauro to represent Taylor pursuant to the PCRA.
Mauro filed a petition for relief under the PCRA in February
1999. 	After the parties resolved a variety of procedural and
expense matters, the petition was amended in May 2002. 	The
amended petition contained twenty-five grounds for relief.
¶10 	In response to Taylor’s petition, the State moved for
summary judgment. 	Specifically, the State argued that Taylor’s
claims were procedurally barred and that appellate counsel had
not overlooked any obvious claims that probably would have
resulted in a reversal. 	In his response to the State’s motion,
Taylor filed the affidavits of a licensed psychologist, the
director of the Salt Lake Legal Defender Association, and a
paralegal trained in investigating capital cases.
¶11 	The post-conviction court granted the State’s motion
for summary judgment. 	It recognized that each of Taylor’s
“claims ha[d] been raised in support of [Taylor’s] more general
assertion that he received ineffective assistance of both trial
and appellate counsel.” 	The court held that all ineffective
assistance of trial counsel claims were procedurally barred
because they “ha[d] been or could have been brought by [Taylor]
through appellate counsel at the time of the 23(b) [sic] remand
hearing.” 	Thus, the court concluded, Taylor’s ineffective
assistance of trial counsel claims “only [needed to] be assessed
in the context of ineffective assistance of appellate counsel.”
The court then proceeded to “review [Taylor’s claims] against a
standard of whether appellate counsel failed to raise an issue
which was obvious from the record and which, if raised, would
probably have resulted in a reversal.”
¶12 	After the post-conviction court granted the State’s
motion, Taylor appealed to this court. 	We have jurisdiction
pursuant to Utah Code section 78-2-2(i) (2002).
STANDARD OF REVIEW
¶13 	“‘We review an appeal from an order dismissing or
denying a petition for post-conviction relief for correctness
without deference to the lower court’s conclusions of law.’”
Gardner v. Galetka, 2004 UT 42, ¶ 7, 94 P.3d 263 (quoting Rudolph
v. Galetka, 2002 UT 7, ¶ 4, 43 P.3d 467). 	When confronted with
ineffective assistance of counsel claims, we review a lower
court’s purely factual findings for clear error, but review the
application of the law to the facts for correctness. 	Menzies v.
Galetka, 2006 UT 81, ¶ 58, 150 P.3d 480.

5 	No. 20040262
ANALYSIS
¶14 	Under the PCRA, Utah Code Ann. §§ 78-35a-101 to -304
(2002 & Supp. 2006), a person “convicted and sentenced for a
criminal offense may file an action in the district court . . .
to vacate or modify the conviction or sentence.” 	Id. § 78-35a-
104(1) (2002). 	Post-conviction relief is a collateral attack on
a conviction or sentence; it is not a substitute for appellate
review. 	Carter v. Galetka (Carter III), 2001 UT 96, ¶ 6, 44 P.3d
626. 	A defendant is not eligible for post-conviction relief on
any ground that was raised on appeal or that could have been
raised on appeal. 	Utah Code Ann. § 78-35a-106 (2002). 	Thus, on
an appeal from a post-conviction order, this court will only
address the merits of claims that could not have been raised
prior to the post-conviction proceeding below or claims that, due
to the gravity of a death sentence, need to be addressed “to
ensure that substantial justice is done.” 	Carter III, 2001 UT
96, ¶ 17.
¶15 	Taylor has already argued ineffective assistance of
counsel in a direct appeal. 	Taylor I, 947 P.2d 681, 684 (Utah
1997). 	Because Taylor has already challenged the effectiveness
of his trial counsel on appeal, his post-conviction claims that
his trial counsel was ineffective are procedurally barred.
Likewise, Taylor could have challenged the trial court’s
decisions or challenged the constitutionality of the death
penalty on direct appeal; thus those claims are also barred.
¶16 	However, the post-conviction proceeding presented
Taylor with his first opportunity to challenge the effectiveness
of his appellate counsel. 	A defendant has the right to the
effective assistance of appellate counsel under the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution. 	Bruner v. Carver, 920 P.2d 1153, 1157 (Utah 1996).
A post-conviction petitioner can show that his appellate counsel
was ineffective by showing that appellate counsel prejudiced his
case “‘by omitting a [claim that is a] “dead-bang winner.”’”
Carter III, 2001 UT 96, ¶ 48 (quoting Banks v. Reynolds, 54 F.3d
1508, 1515 (10th Cir. 1995)). 	This requires the petitioner to
show that appellate counsel omitted an “‘issue which is obvious
from the trial record and one which probably would have resulted
in reversal on appeal.’” 	Id. (quoting Banks, 54 F.3d at 1515
n.13).
¶17 	To determine whether appellate counsel missed an
obvious claim on appeal, “we examine the merits of the [omitted]
issues.” 	Id. 	“Failure to raise an issue that is without merit

No. 20040262 	6
does not constitute constitutionally ineffective assistance of
counsel because the Sixth Amendment does not require an attorney
to raise every nonfrivolous issue on appeal.” 	Id. (internal
quotation marks omitted). 	Thus, we look to the merits of
Taylor’s claims that his appellate counsel was ineffective for
failing to challenge (1) Taylor’s guilty plea; (2) trial
counsel’s mitigation investigation; (3) the jury instructions;
(4) the jury voir dire; (5) trial counsel’s performance during
jury selection; (6) Taylor’s competency at sentencing and at the
23B proceeding; (7) the admission of the Manley statement;
(8) the misconduct of the prosecutors; and (9) the
constitutionality of his death sentence.
I. 	TAYLOR IS NOT ENTITLED TO WITHDRAW HIS GUILTY PLEA
¶18 	We begin by addressing Taylor’s argument that his
appellate counsel was ineffective for failing to challenge
Taylor’s guilty plea. 	Taylor alleges that his guilty plea was
unlawful because (1) he did not know that evidence of the
dismissed charges could be used at the penalty phase; (2) the
trial court did not inform him of his presumption of innocence;
and (3) the trial court did not explain the difference between
Taylor’s testimony at trial and at the penalty phase or the
difference between a penalty-phase testimony and allocution.
¶19 	Taylor has already challenged his guilty plea before
this court. 	See Taylor I, 947 P.2d 681, 685-86 (Utah 1997). 	In
Taylor I, Taylor asserted that his trial counsel was ineffective
because he misinformed Taylor about the use of the dismissed
charges at the penalty phase. 	Id. at 685. 	We held that
“[e]vidence presented at the rule 23B hearing supports the
finding that [trial counsel] correctly informed Taylor about the
scope of the penalty phase.” 	Id. 	We likewise noted that the
plea transcript undermined Taylor’s claim that he did not know
that evidence of the dismissed charges would be admissible
because the State informed the court and trial counsel during the
plea hearing that it would seek to admit evidence of the
dismissed charges. 	Id. 	Because appellate counsel already raised
this claim on appeal and lost, Taylor cannot meet the standard of
showing that appellate counsel was ineffective for failing to
raise a “dead-bang winner.” 	Moreover, we are satisfied with our
conclusion in Taylor I and see no need to readdress the merits of
this issue.
¶20 	We likewise conclude that appellate counsel did not
miss an obvious claim by failing to argue that the plea court
should have informed Taylor that he was entitled to a presumption
of innocence. 	While the current version of rule 11 requires a

7 	No. 20040262
court to ascertain that a defendant “knows of the right to the
presumption of innocence,” Utah R. Crim. P. 11(e)(3) (2006), the
1991 iteration of rule 11 did not. 	The closest requirement
contained in the 1991 rule was that the court ascertain that the
defendant understood “that upon trial the prosecution would have
the burden of proving each [element of the offense] beyond a
reasonable doubt.” 	Utah R. Crim. P. 11(5)(d) (1991). 	The trial
court satisfied this requirement, specifically asking Taylor
whether he understood that the State was “under an obligation to
prove to the jury beyond a reasonable doubt each and everyone
[sic] of [the] elements” of the charged offenses. 	Taylor replied
that he understood. 	This was adequate under the 1991 version of
rule 11. 	Because the colloquy was not erroneous, appellate
counsel could not have overlooked an obvious claim on appeal.
¶21 	Moreover, appellate counsel was not ineffective for
failing to raise on appeal the trial court’s failure to inform
Taylor about the difference between testimony and allocution. 	In
1991, rule 11 did not impose a requirement that a trial court
ascertain a defendant’s knowledge about the implications of
testimony at the guilt phase as compared to the penalty phase or
a defendant’s knowledge about the difference between testimony
and allocution. 	Indeed, rule 11 has never required the trial
court to make such an inquiry. 	Both the 1991 and the current
versions of rule 11 require only that a trial court inform a
defendant that he has a right “against compulsory self-
incrimination.” 	Utah R. Crim. P. 11(e)(3) (2006); Utah R. Crim.
P. 11(5)(c) (1991). 	The trial court did inform Taylor of this
right, specifically telling Taylor that he would “have the right
to take the stand and to testify in [his] own behalf[,] . . .
[but that he] would have the right to remain silent . . . [and
that he could not] be forced to testify.” 	Thus, we do not think
the trial court’s plea colloquy was infirm in this respect.
¶22 	Because the trial court’s colloquy was proper under
rule 11 when Taylor entered his plea, we hold that appellate
counsel was not ineffective for failing to challenge the court’s
proceedings or trial counsel’s effectiveness. 	We therefore
affirm the post-conviction court’s grant of summary judgment on
this issue.
II. 	TRIAL COUNSEL’S INADEQUATE MITIGATION INVESTIGATION
DID NOT PREJUDICE THE DEFENSE
¶23 	Taylor next argues that his appellate counsel was
ineffective for failing to challenge trial counsel’s inadequate
mitigation investigation and for not conducting his own thorough
mitigation investigation that would have revealed that Taylor

No. 20040262 	8
suffered from brain damage. 	In order to fully understand
Taylor’s claims, we begin with a recitation of the relevant
facts.
¶24 	Before Taylor pled guilty to the Tiede cabin murders,
he notified the court that he intended to pursue a defense based
on insanity or diminished mental capacity. 	As a result, the
district court appointed Drs. Mark Rindflesh and Louis A. Moench
to examine Taylor’s mental condition. 	The purpose of these
evaluations was to assess Taylor’s mental state at the time of
the murders in order to determine whether he met the requirements
for a defense based on insanity or diminished capacity.
¶25 	Dr. Rindflesh reported that Taylor “ha[d] no history of
involvement with counselling [sic] or therapy from mental health
professionals for drug or alcohol abuse, or any other psychiatric
problem.” 	He stated that Taylor had used drugs and alcohol in
high school, but that he had quit using drugs. 	Moreover, Dr.
Rindflesh indicated that he “did not observe any disturbance of
[Taylor’s] thought processes or his thought content” or any
“signs of hallucinations or delusions.” 	Rather, he noted that
Taylor “was able to organize and present his ideas in a logical
manner,” that Taylor’s mood was “stable and appropriate,” and
that Taylor “reported no symptoms of any psychiatric illness.”
Dr. Rindflesh also reported that Taylor’s “level of intelligence
appear[ed] to be within the range of normal.” 	Thus, Dr.
Rindflesh concluded that Taylor did not suffer from a mental
illness either at the time of the evaluation or at the time of
the killings.
¶26 	Dr. Moench likewise concluded that Taylor was not
mentally ill for purposes of an insanity defense. 	Dr. Moench
suggested that Taylor suffered from depression, an anti-social
personality disorder with schizoid personality features, and a
learning disability. 	He also stated,
[t]he random property destruction in the
cabins . . . , and the destruction of human
life itself, is a level of violence sometimes
seen with head injured or otherwise brain
damaged people. 	However, [Taylor]
present[ed] no history of head injury and no
evidence for brain impairment other than some
degree of learning disability in math and
English.
Dr. Moench reported that Taylor appeared to have normal
intelligence.

9 	No. 20040262
¶27 	Dr. Moench also examined Taylor’s past history. 	For
example, his report indicated that “[i]n third grade [Taylor]
once became upset and ‘tore the class apart.’ 	Psychological help
was recommended. . . . 	His parents asked for a class change
instead of arranging treatment.” 	Dr. Moench’s report noted that
Taylor was self-conscious about a scar on his cheek, Taylor’s
sister considered him a “loner,” and Taylor was diagnosed with
“Adjustment Disorder with Mixed Emotional Features and elements
of Passive Aggressive Personality Disorder” while serving his
burglary prison sentence. 	The Moench report stated that Taylor
had been interested in “black magic, satanism, or witchcraft” and
had attended animal sacrifices. 	However, the report noted that
he was there “more as an observer than a devoted participant.”
¶28 	Taylor ultimately pled guilty, and the jury never saw
the Rindflesh and Moench reports. 	Despite contemplating an
insanity defense and reading the information contained in the
Moench report, trial counsel did not conduct a separate
investigation into Taylor’s mental health or hire his own expert
to evaluate Taylor. 	At sentencing, the State indicated that it
would attempt to introduce the Moench report if trial counsel
introduced psychological evidence. 	Trial counsel also did not
obtain Taylor’s school records or personal health records or
investigate whether there were juvenile court records or records
from social service agencies. 	He likewise did not speak to any
of Taylor’s friends or siblings, but spoke only to Taylor’s
parents.
¶29 	At sentencing, trial counsel called only three
mitigation witnesses. 	First he called James Holland, a death-row
inmate who testified about life in prison. 	Trial counsel then
called Taylor’s father, who testified that Taylor was “a quiet,
loving individual,” always “polite and courteous.” 	He also
testified that he did not remember the subject of mental health
counseling ever being raised and that he had not noticed any
“unusual psychological problems.” 	He stated that Taylor was
“quiet, reserved, liked to be to himself, [and] was self
conscious,” but that he never thought it was due to anything
other than his personality. 	The final witness called by trial
counsel was Taylor, who testified that he was sorry.
¶30 	Taylor first raised the argument that trial counsel had
been ineffective for not conducting a mitigation investigation on
direct appeal. 	This court remanded the appeal to the district
court for a hearing under rule 23B of the Utah Rules of Appellate
Procedure. 	At the rule 23B hearing, trial counsel testified
regarding his penalty phase performance. 	He stated that, at the
time of the trial, he did not know that there were mitigation

No. 20040262 	10
experts available to review evidence and testify in death penalty
cases. 	He also expressed skepticism about expert witnesses for
mitigation purposes, stating that it is possible to find an
expert that will back up any theory. 	He stated that he believed
the two court-appointed doctors were independent and that he did
not believe it was necessary to hire another psychologist or
psychiatrist to evaluate Taylor. 	He also believed that there was
evidence in both the Moench and Rindflesh reports that was not
favorable to Taylor and testified that it was a “tactical
decision” not to put psychological experts on the stand. 	Trial
counsel admitted that he did not acquire Taylor’s school or
health records, but stated that he did not think it was necessary
after asking Taylor about school and his health. 	He thought
Taylor and his father were the two best witnesses because he
wanted to “make Mr. Taylor as human as possible” and show that he
was not a violent person.
¶31 	Following the hearing, the 23B court found that Taylor
had received effective assistance of counsel. 	The 23B court
found that counsel’s decisions not to obtain or present
psychological evidence were strategic because the information in
the Moench report was counterproductive to the “boy next door”
image the defense was hoping to present. 	Moreover, the 23B court
noted that Taylor had not demonstrated that counsel would have
found anything if he had performed a mitigation workup.
¶32 	We affirmed in Taylor I, 947 P.2d 681, 686 (Utah 1997).
In that case, we held that a defense attorney must “adequately
investigate all potentially mitigating factors.” 	Id.
Nevertheless, we denied Taylor’s claim for relief. 	We recognized
that trial counsel “knew about Taylor’s childhood psychological
problems resulting from a facial scar, a learning disorder, and
substance abuse in his family.” 	Id. at 687. 	But we did not
conclude that his decision not to introduce them was erroneous,
noting that a defense attorney “does not have an obligation to
introduce [mitigating] evidence if she believes after a thorough
investigation that it will harm the case or if other strategic
reasons for its omission exist.” 	Id. 	Moreover, Taylor failed to
identify any other mitigating information that might have been
discovered by additional investigation. 	Id. 	We held that “[a]
defendant must show not only that counsel failed to seek
mitigating evidence, but also that some actually existed to be
found.” 	Id. 	Because Taylor failed to meet this burden, we
denied his claim.
¶33 	In his post-conviction petition, Taylor asserted that
trial and appellate counsel should have conducted a mitigation
investigation into his background, spoken to his siblings, and

11 	No. 20040262
investigated the possibility of brain damage. 	According to
Taylor, such an investigation would have revealed that he had “no
prior criminal history and was generally known as a non-violent
and compassionate person,” that he was a minor participant in the
crime, and that he suffered from brain damage. 	In support of
this argument, Taylor offered the affidavits of Linda Gummow,
Ph.D., a licensed psychologist; Ted Cilwick, a paralegal and
licensed private investigator; and F. John Hill, the director of
the Salt Lake Legal Defender Association.
¶34 	Dr. Gummow’s affidavit reported her belief that “there
were sufficient issues in 1991 to raise the issue of brain damage
as a possible explanation for Mr. Taylor’s criminal acts.” 	She
based her conclusion upon the following: 	(1) Taylor had been
“involved in a significant number of accidents and other episodes
associated with brain injury,” including a backwards fall down a
flight of stairs onto a cement landing, a rollover car accident,
a headfirst fall off of a sled onto a cement sidewalk, “a
possible motorcycle accident,” “a prison injury caused when Mr.
Taylor hit his head on a metal stairwell,” and a facial injury
caused by the explosion of an aerosol can; (2) Taylor had been
exposed to pesticides and other farm chemicals that can
contribute to brain injury; (3) Taylor’s learning disability,
which was diagnosed by Dr. Moench, could indicate brain damage;
and (4) there was some evidence in Taylor’s behavior of
psychiatric disorders, which can indicate brain damage. 	Dr.
Gummow further stated that the possible brain damage and Taylor’s
psychiatric condition had not been “adequately explored” at the
penalty phase.
¶35 	Dr. Gummow concluded that “[b]ased upon [her] training,
experience, and the obvious clues available in 1991, Mr. Taylor
should have undergone a neuropsychological evaluation.” 	After
conducting her own evaluation, Dr. Gummow reported that her “test
findings identified moderate brain damage.” 	She specifically
noted seeing deficiencies in Taylor’s “verbal fluency, receptive
language, articulation, memory, . . . tactual skills, fine motor
coordination, and some executive skills.” 	Dr. Gummow did not,
however, link her brain damage diagnosis to Taylor’s conduct.
She stated only that “[b]rain damage is especially relevant in
explaining violent or out of control behavior. 	A brain injured
person often cannot fully appreciate the wrongfulness of his
conduct or conform his conduct to requirements of law.”
Moreover, Dr. Gummow’s diagnosis that Taylor has moderate brain
damage was not accompanied by a diagnosis of a low I.Q. 	She
reported that Taylor has an I.Q. of “106 to 110 with 100
representing the population mean.” 	While Dr. Gummow did not
speak to Taylor’s family, she noted that interviews they gave to

No. 20040262 	12
a diagnostic evaluator in 1989 indicated that Taylor was
susceptible to (1) wide mood swings, (2) suicide attempts,
(3) significant social withdrawal, (4) substance abuse and lack
of ability to control anger in his youth, and (5) being a
follower.
¶36 	Mr. Cilwick’s affidavit stated that he is a paralegal
and private investigator who has received training in capital
cases, has worked as a court-appointed investigator in capital
cases, and has worked closely with mitigation specialists in
capital cases. 	Mr. Cilwick was retained as an investigator in
post-conviction proceedings in this case. 	Specifically, Mr.
Cilwick was asked to “interview members of the Taylor family.”
Mr. Cilwick interviewed Taylor’s parents and siblings. 	In his
affidavit, he stated that each sibling told him that “they were
never interviewed, consulted or met with at any time during the
entire history of [Taylor’s] case.” 	Moreover, after Mr. Cilwick
had interviewed [Taylor’s] siblings, Taylor’s parents remarked
“that they were unaware” of many of the things described by the
siblings. 	Taylor’s siblings told Mr. Cilwick that Taylor “was
peaceful, loving, and non-violent as a child.” 	They also
described various head injuries Taylor had sustained, described
him as “a follower” who was quiet and was picked on by other
kids, and told Mr. Cilwick about a “history of mental health and
drug and alcohol problems in the family.” 	Taylor’s mother
related an incident when Taylor fell backwards down the stairs
and Taylor’s father told Mr. Cilwick about Taylor’s exposure to
“considerable amounts of chemicals on the farm in Idaho.”
Taylor’s brother Steven described an incident several days before
the murders when Taylor and Edward Deli visited him and told Mr.
Cilwick that “Deli was running the whole thing.”
¶37 	F. John Hill’s affidavit stated that due to his
experience as a defense attorney who had represented persons
charged with capital murder, he was familiar with the process by
which a mitigation investigation was conducted in the 1980s and
early 1990s. 	After reviewing the evidence, Mr. Hill concluded
that “[t]rial counsel should have consulted a neurologist and
other medical experts in this case to determine if Mr. Taylor had
brain injury or brain damage.” 	This conclusion was based on his
opinion that in the 1980s and early 1990s, “brain injury . . .
was one [of] the most important mitigating factors in a penalty
phase hearing.” 	He opined that “[a] minimally competent capital
litigator should have known, based upon the evidence available in
[the] early 1990’s,” including the Moench report, “that Mr.
Taylor probably suffered from brain damage.” 	Moreover, he noted,
“It was well known in the third district in 1990 and 1991, [that]
brain damage affects human behavior in significant and dramatic

13 	No. 20040262
ways. . . . [and that] [b]rain injury is often the cause of
conduct associated with criminal behavior[,] . . . gross
disturbances in judgment and reasoning, disinhibition of
impulses, and in personality changes.” 	According to Mr. Hill, in
1991, “[t]here [was] no strategic reason for failing to
investigate and present evidence of brain injury to a penalty
phase jury.”
¶38 	The State moved to strike the affidavits of F. John
Hill and Ted Cilwick. 	Specifically, the State alleged that Mr.
Hill’s testimony was inadmissible because substandard
representation was a legal question for the court and because Mr.
Hill was not competent to testify “about how brain injury affects
human behavior.” 	The State argued Mr. Cilwick’s testimony was
inadmissible because “it [was] inadmissible expert testimony on a
legal conclusion,” it “[was] inadmissible hearsay,” and “Mr.
Cilwick provide[d] insufficient foundation to demonstrate the
relevance of the proffered testimony.”
¶39 	The post-conviction court granted the motion to strike
the affidavit of Mr. Cilwick because it “contain[ed] primarily
hearsay that would be inadmissible in this post conviction case.”
The court also agreed to strike paragraph 11 of Mr. Hill’s
affidavit, but “otherwise allow[ed] the remainder of the
Affidavit to stand.” 	Paragraph 11 of Mr. Hill’s affidavit
stated,
It was well known in the third district in
1990 and 1991, [that] brain damage affects
human behavior in significant and dramatic
ways. 	There is high correlation between
brain injury and violent conduct over which
the person has little control. 	Brain injury
is often the cause of conduct associated with
criminal behavior. 	Brain damage is
associated with gross disturbances in
judgment and reasoning, disinhibition of
impulses, and in personality changes. 	This
is especially relevant to the penalty phase
hearing as brain damage impairs those
cognitive functions associated with an
individual’s self-regulation of behavior,
resulting in irrational decision making, the
inability to inhibit behavioral impulses, or
the inability to accurately evaluate
consequences of one’s behavior through
reasoning. 	Evidence of brain injury is
obviously a critical and important component

No. 20040262 	14
of a penalty phase hearing because it
addresses [] two statutory mitigating
circumstances.
Mr. Hill specified the mitigating circumstances to which he was
referring in paragraph 9. 	The mitigating circumstances were
(1) the murder was committed while the
defendant was under the influence of extreme
mental or emotional disturbance; and (2) at
the time of the murder, the capacity of the
defendant to appreciate the criminality
(wrongfulness) of his conduct or to conform
his conduct to the requirement of law was
substantially impaired as a result of mental
disease, intoxication, or influence of drugs.
¶40 	After striking the Cilwick affidavit and paragraph 11
of the Hill affidavit, the post-conviction court granted the
State’s motion for summary judgment. 	The court noted that
Taylor’s mitigation claim was procedurally barred because it had
been raised on direct appeal. 	Nevertheless, the post-conviction
court proceeded to address the merits of the claim “to ensure
that [Taylor] ha[d] not been denied an obvious or substantial
constitutional right.” 	It held that appellate counsel’s decision
to pursue the mitigation investigation as part of the conflict of
interest claim was a reasonable, strategic decision. 	Moreover,
the district court found that, despite Dr. Gummow’s affidavit,
Taylor had not alleged “that his moderate brain damage [was]
somehow related to his criminal conduct.” 	Likewise, the court
concluded that the evidence of Taylor’s background and family
history did not “undermine[] the Court’s confidence in the jury’s
verdicts.” 	Thus, the post-conviction court held that Taylor had
not raised an issue of fact regarding appellate counsel’s
competence, and granted the State’s motion for summary judgment
on this issue.
A. 	The Hill and Cilwick Affidavits Were Admissible
¶41 	Before addressing Taylor’s ineffective assistance
claims, we address Taylor’s argument that the post-conviction
court erred in striking the Cilwick affidavit and paragraph 11 of
the Hill affidavit.
¶42 	The post-conviction court declared the Cilwick
affidavit inadmissible because it was based primarily on hearsay.
We disagree. 	Hearsay is “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in

15 	No. 20040262
evidence to prove the truth of the matter asserted.” 	Utah R.
Evid. 801(c). 	In this case, Taylor offered the Cilwick affidavit
to show what his siblings would have revealed if trial counsel
had spoken to them. 	While Mr. Cilwick recited statements made by
the siblings, Taylor did not offer them for the truth of the
matter asserted. 	In other words, Taylor did not offer the
statements in the affidavits to prove that he was “a quiet and
withdrawn child” or to prove that he had been in various
accidents. 	Rather, he offered the affidavit to show that if
trial counsel had conducted a mitigation workup and spoken to
Taylor’s siblings, he would have found mitigation evidence that
could have been offered at trial or could have opened doors to
further investigation.
¶43 	We recognize that Taylor did offer a couple of the
statements in the affidavit for the truth of the matter asserted,
and these statements are therefore inadmissible. 	Specifically,
Mr. Cilwick stated that “[e]ach sibling said they were never
interviewed, consulted or met with at any time during the entire
history of [Taylor’s] case,” and that Taylor’s parents “remarked
. . . that they were unaware of many of the things described
. . . by their children.” 	As a practical matter, however, these
statements were not necessary to Taylor’s post-conviction case
because they were cumulative. 	The record already contained
evidence that trial counsel never interviewed Taylor’s siblings
as that was included in the 23B court’s factual findings.
Likewise, Taylor’s father testified at trial that he did not
recall the subject of mental health counseling ever being raised
and that he never noticed any psychological problems or mood
swings, “but many times the parent is the last one to see and
know.”
¶44 	We also hold that paragraph 11 of the Hill affidavit
was admissible. 	The State argues that paragraph 11 was
inadmissible because Mr. Hill was not qualified to testify about
the ways in which brain damage affects human behavior. 	We agree
that Mr. Hill was not qualified to offer scientific testimony
about the effects of brain damage, but paragraph 11 was not being
offered as an expert opinion about the effects of brain damage.
Rather, it was offered to show that a reasonable defense attorney
practicing in 1990 and 1991 would have known that there was
evidence that brain damage can affect human behavior in various
ways, and thus, “[e]vidence of brain injury [was] . . . a
critical and important component of a penalty phase hearing.”
Mr. Hill was fully qualified to offer this testimony. 	For this
purpose, paragraph 11 was admissible.

No. 20040262 	16
B. 	Trial Counsel Did Not Render Ineffective Assistance of
Counsel Under Strickland v. Washington
¶45 	We next address Taylor’s claims that his trial counsel
was ineffective for failing to conduct an adequate mitigation
investigation on appeal and that his appellate counsel was
ineffective for failing to adequately challenge trial counsel’s
performance. 	While appellate counsel did address trial counsel’s
mitigation strategy, he did so in the context of trial counsel’s
conflict of interest due to his low compensation. 	He did not
raise an independent claim that the investigation was inadequate,
and he did not conduct his own investigation to determine what
trial counsel may have missed.
¶46 	We examine Taylor’s claims of ineffective assistance of
counsel using the test set forth by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668 (1984). 	Under
Strickland, Taylor must show “that counsel’s performance was
deficient.” 	Id. at 687. 	If Taylor satisfies this test, he must
then show “that the deficient performance prejudiced the
defense.” 	Id. 	We address each part of the Strickland test as it
relates to Taylor’s claim of ineffective assistance of trial
counsel below.
1. 	Trial Counsel’s Performance was Deficient
¶47 	Taylor claims that trial counsel’s performance was
deficient because he failed to conduct an adequate mitigation
investigation. 	An attorney “has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.” 	Id. at 691. 	This duty
is magnified in death penalty cases. 	Harries v. Bell, 417 F.3d
631, 637 (6th Cir. 2005). 	When we assess claims that counsel’s
mitigation investigation was defective, we do not ask whether
counsel had strategic reasons for not presenting certain
mitigating evidence, but rather “whether the investigation
supporting counsel’s decision not to introduce mitigating
evidence . . . was itself reasonable.” 	Wiggins v. Smith, 539
U.S. 510, 522-23 (2003). 	Accordingly, “strategic choices made
after [a] less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments
support the limitations on investigation.” 	Strickland, 466 U.S.
at 690-91.
¶48 	We assess the “reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the
time of counsel’s conduct.” 	Id. at 690. 	In determining whether
counsel’s investigation was reasonable, we “consider not only the

17 	No. 20040262
quantum of evidence already known to counsel, but also whether
the known evidence would lead a reasonable attorney to
investigate further.” 	Wiggins, 539 U.S. at 527. 	However,
counsel’s conduct is presumed to be reasonable. 	Strickland, 466
U.S. at 694. 	A defendant claiming his trial counsel conducted an
inadequate investigation therefore must overcome “the strong
presumption that counsel’s [investigation fell] within the wide
range of reasonable professional assistance.” 	Id.
¶49 	Therefore, our inquiry in this case is whether trial
counsel’s investigation fell within “the wide range of reasonable
professional assistance” in 1991. 	To make this determination, we
look to the information available to trial counsel. 	We also
consider the prevailing professional norms at the time. 	In this
case, we find evidence of the prevailing norms in the Hill
affidavit as well as in the ABA Guidelines for the Appointment
and Performance of Counsel in Death Penalty Cases (the ABA
Guidelines). 	See Menzies v. Galetka, 2006 UT 81, ¶ 90, 150 P.3d
480.
¶50 	We conclude that trial counsel’s decision to stop
investigating did not fall within the “wide range of reasonable
professional assistance.” 	Strickland, 466 U.S. at 694. 	At the
very least, we think the Moench report’s indicia of personality
disorders and possible brain damage would have prompted a
reasonable attorney to investigate further. 	The Hill affidavit
supports this conclusion. 	According to Mr. Hill, it was widely
known in 1991 that evidence of brain damage was “one of the most
important” pieces of mitigating evidence that could be offered at
sentencing. 	Moreover, Mr. Hill opined that based upon the
evidence in the Moench report, a “minimally competent capital
litigator should have known . . . that Mr. Taylor probably
suffered from brain damage,” and that “[t]rial counsel should
have consulted a neurologist and other medical experts . . . to
determine if Mr. Taylor had brain injury or brain damage.” 	In
light of the Moench report and in light of Taylor’s consideration
of entering an insanity defense, we agree with Mr. Hill’s
conclusion that a reasonable attorney would have conducted an
independent investigation into the possibility of brain damage.
¶51 	However, a reasonable investigation in this case would
have included more than just a separate consultation with a
neurologist or other medical experts. 	The ABA Guidelines in
place at the time of Taylor’s penalty phase instructed counsel to
“collect information relevant to the sentencing phase,” including
information about the defendant’s (1) medical history, such as
information about “mental and physical illness or injury, alcohol
and drug use, birth trauma and develop[mental] delays”;

No. 20040262 	18
(2) educational history, such as information about “achievement,
performance and behavior” and “special educational needs
[]including cognitive limitations and learning disabilities[]”;
and (3) family and social history. 	Guideline 11.4.1(D)(2)(C), p.
94 (1989). 	Based upon the prevailing professional norms
reflected in the ABA Guidelines, we think that reasonable trial
counsel at the time of Taylor’s penalty phase would have spoken
to Taylor’s immediate family members and friends to determine
whether they knew if Taylor had suffered head injuries or whether
they had any other information that would suggest brain injury.
In addition, we think reasonable trial counsel would have
conducted an independent investigation into Taylor’s health
records, rather than merely relying on his representations about
his medical history. 	See Harries, 417 F.3d at 638 (discussing
trial counsel’s performance in the 1980s and stating that “[t]he
sole source of mitigating factors cannot properly be that
information which defendant may volunteer; counsel must make some
effort at independent investigation in order to make a reasoned,
informed decision as to their utility” (citation and internal
quotation marks omitted)). 	Finally, we think reasonable trial
counsel would have obtained school records, particularly in light
of the third-grade incident described in Dr. Moench’s report and
Dr. Moench’s conclusion that Taylor had a learning disability.
Based on trial counsel’s failure to investigate any of the above
evidence, we conclude that his investigation fell outside the
“wide range of reasonable professional assistance.” 	Strickland,
466 U.S. at 694.
¶52 	We recognize that Drs. Moench and Rindflesh concluded
that Taylor did not present any evidence of head injury or brain
impairment and was not mentally ill. 	Nevertheless, their
conclusion does not excuse trial counsel’s failure to conduct his
own mitigation investigation into Taylor’s mental health. 	Drs.
Moench and Rindflesh conducted their evaluations for the purpose
of determining whether Taylor could satisfy the requirements of
the insanity test, not to determine whether Taylor had brain
damage. 	Indeed, the Hill affidavit noted that “a minimally
competent capital attorney in 1991 should have known that an
investigation into sanity would yield little useful mental health
information since the inquiry for insanity was so limited.”
Moreover, Dr. Gummow stated that the tests Drs. Moench and
Rindflesh used to evaluate Taylor are “not generally accepted as
instruments to diagnose brain damage.” 	Had trial counsel
contacted his own expert instead of relying on the reports by the
court-appointed doctors, he likely would have realized this. 	We
do not mean to suggest that the court-appointed doctors in this
case were not competent. 	Rather, we think they were retained for
the very limited purpose of evaluating Taylor’s sanity and that

19 	No. 20040262
it was unreasonable for trial counsel to rely solely on them with
regard to the penalty phase mitigation investigation. 	See
Dickerson v. Bagley, 453 F.3d 690, 696-97 (6th Cir. 2006)
(holding that it was not reasonable in the 1980s for counsel to
limit his mitigation investigation to the crime itself and the
determination of whether the defendant was sane at the time he
committed the crime).
¶53 	This case is similar to the Sixth Circuit case of
Harries v. Bell, 417 F.3d 631. 	In that case, the defense
attorneys limited their investigation to contacting two family
members by telephone, sending information requests to some of the
institutions in which the defendant had been confined, and
interviewing the defendant, his co-defendant, and two of the
state witnesses. 	Harries, 417 F.3d at 638. 	The attorneys did
request “two court-ordered competency evaluations,” but they
“declined to seek the assistance of a mental health expert or
conduct a thorough investigation of [the defendant’s] mental
health,” even after they had been alerted to possible mental
illness by the defendant’s mother. 	Id. 	In their defense,
Harries’ attorneys argued that they did not believe evidence of
the defendant’s background would be helpful. 	Id. 	Looking in
part to the ABA Guidelines, the Sixth Circuit held that trial
counsel’s performance was ineffective, specifically stating that
failing to investigate because counsel does not think it will
help does not constitute a strategic decision, “but rather an
abdication of advocacy.” 	Id.
¶54 	Like Harries’ attorneys, trial counsel in this case did
not speak to all of Taylor’s immediate family members. 	He did
not obtain Taylor’s school records. 	Further, he did not conduct
a thorough investigation into Taylor’s mental health, even though
Taylor contemplated raising an insanity defense and Dr. Moench
indicated that Taylor had exhibited signs of a personality
disorder and demonstrated behavior consistent with brain damage.
Instead, trial counsel relied exclusively on the sanity
evaluations conducted by two court-appointed doctors.
¶55 	As in Harries, the State in this case argues that
counsel’s failure to investigate was a strategic decision because
trial counsel wanted to prevent the State from introducing
harmful evidence contained in the reports, specifically Taylor’s
confession to Dr. Rindflesh that he had been involved in satanic
worship. 	But the failure to investigate in this case did not
constitute a strategic decision. 	Trial counsel could not
adequately weigh the harm of evidence in the Moench report
without conducting a thorough mitigation investigation.
Moreover, trial counsel’s decisions do not appear to have been

No. 20040262 	20
entirely strategic; rather, they appear to be based, in part, on
his lack of knowledge of mitigation experts and his belief that
all experts were “hired guns” and that it was unethical to use
them. 	Notwithstanding trial counsel’s lack of knowledge of
mitigation experts, his failure to investigate solely because of
his belief that the psychiatrists’ reports contained harmful
information and that experts were “hired guns” was inexcusable.
It did not constitute a reasonable strategic decision, “but
rather an abdication of advocacy.” 	Id. at 638.
2. 	Trial Counsel’s Performance Did Not Prejudice Taylor
¶56 	Having determined that trial counsel’s performance was
deficient, we now turn to whether it was prejudicial. 	“An error
by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error
had no effect on the judgment.” 	Strickland, 466 U.S. at 691. 	To
prove trial counsel’s performance was prejudicial, a defendant
“must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. 	A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id. at 694.
¶57 	However, when determining whether the evidence counsel
would have discovered is sufficient to undermine confidence in
the outcome of the case we do not consider that evidence on its
own. 	Rather, we “consider the totality of the evidence before
the judge or jury.” 	Id. at 695. 	In a death penalty case, the
question therefore is “whether there is a reasonable probability
that, absent the errors, the sentencer . . . would have concluded
that the balance of aggravating and mitigating circumstances did
not warrant death.” 	Id. 	In reaching this conclusion,
idiosyncracies of the particular jury--including any
“propensities toward harshness or leniency”--are irrelevant. 	Id.
¶58 	Taylor has not shown that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” 	Id. at 694.
According to Taylor, if trial counsel had conducted an adequate
mitigation investigation, the jury would have learned that Taylor
had “moderate” brain damage, had hit his head several times, had
been exposed to farm chemicals, had been a loner and a follower
for all of his life, was subject to wide mood swings, and had
been a peaceful, loving, nonviolent child. 	They also may have
heard some indication that there was a history of alcohol and
substance abuse in Taylor’s family. 	However, if trial counsel
had presented this evidence, the jury likely would have heard the

21 	No. 20040262
State’s evidence rebutting Taylor’s claims of brain damage. 	This
would likely have included evidence that Taylor has a normal
I.Q., as stated by both the Moench and Gummow reports, and that
Dr. Moench concluded that Taylor was not mentally ill.
¶59 	Moreover, the jury would still have heard the testimony
of Rolf Tiede and his daughters describing the crime. 	Among
other things, the jury heard Linae Tiede recount her discovery of
Taylor and Deli in the cabin and watching them shoot her mother
and grandmother; Linae Tiede testify that Taylor told her to stop
praying because he worshiped Satan; Rolf Tiede testify about
being shot twice and then being doused in gasoline before Taylor
and Deli lit the cabin on fire; and Linae and Ticia Tiede detail
their ordeal of being kidnaped by Taylor and Deli, forced to help
Taylor and Deli steal their father’s car, and then taken on a
high-speed chase while Taylor and Deli tried to flee from the
police.
¶60 	The State notes that Taylor’s claim failed below, in
part, because he argued only that the brain damage evidence was
relevant to the statutory mitigating factors that Taylor
committed the murders while under the influence of a mental or
emotional disturbance or that Taylor did not have the ability to
appreciate the wrongfulness of his conduct. 	See Utah Code Ann.
§ 76-3-207(2)(b), (d) (1990). 	The State is correct in its
assertion that Taylor has not proffered any evidence connecting
Dr. Gummow’s brain damage diagnosis to his mental state at the
time of the crime. 	He consequently cannot show that trial
counsel’s failure to raise this issue at the penalty phase
prejudiced him in this respect. 	Furthermore, we do not think
that Taylor can show prejudice even with respect to the broader
argument that the evidence of brain damage would have won juror
sympathy and resulted in a lighter sentence. 	Given the
horrendous circumstances of this crime, it is not at all likely
that the jury would have concluded that the mitigating
circumstances outweighed the aggravating circumstances.
Therefore, counsel’s errors do not undermine our confidence in
the outcome of the penalty phase.
¶61 	We likewise conclude that appellate counsel was not
ineffective because he failed to challenge trial counsel’s
mitigation investigation independent of the conflict-of-interest
claim and failed to conduct his own mitigation investigation.
Had appellate counsel discovered and presented the information
proffered by Taylor during the post-conviction proceedings, it is
not likely that this court would have found that trial counsel’s
performance was prejudicial. 	Thus, Taylor cannot show that he
received ineffective assistance of appellate counsel. 	We

No. 20040262 	22
therefore affirm the post-conviction court’s decision on this
issue.
III. 	THE JURY INSTRUCTIONS WERE APPROPRIATE
¶62 	Taylor argues that his appellate counsel should have
challenged several of the jury instructions given at the penalty
phase. 	Specifically, he argues that (1) the instruction giving
the mitigating factors to the jury was too complicated because
each mitigating factor is phrased in the form of “whether” that
particular mitigating factor exists; (2) the instruction
informing the jurors how to weigh mitigating and aggravating
circumstances instructed them to consider “the totality of the
evidence produced by the state and the defendant” instead of
asking them to determine whether aggravating factors outweighed
mitigating factors; (3) the reasonable doubt instruction failed
to adequately explain the meaning of that term; (4) the trial
court failed to give an instruction that there was a presumption
in favor of life and failed to give an instruction explaining the
meaning of life in prison; and (5) the trial court did not
instruct the jury that life imprisonment was an option but rather
instructed the jury only that it could make a unanimous finding
of death or return with a verdict that the jury could not reach a
unanimous verdict. 	Taylor also argues that trial counsel was
ineffective for failing to object to the instructions and that
appellate counsel was ineffective for failing to challenge the
instructions or trial counsel’s ineffectiveness for failing to
object to them.
¶63 	The post-conviction court held that the jury
instructions “fairly and accurately instructed the jury on the
law that applied to [Taylor’s] case . . . [and] trial counsel
exercised reasonable professional judgment when he assented
without objection to the challenged instructions.” 	Because trial
counsel acted reasonably, appellate counsel did not overlook an
obvious claim and would not have been able to demonstrate that
any errors would have resulted in reversal.
¶64 	We agree with the post-conviction court’s conclusion
that Taylor cannot show that the correction of any errors in the
instructions would have changed his sentence. 	When all of the
instructions are considered together, it is clear that the jury
was “fairly and accurately instructed” on Utah law. 	The trial
court told the jury to consider the mitigating factors listed in
the instruction as well as any other fact in mitigation. 	The
court instructed the jury that it must find, beyond a reasonable
doubt, that the aggravating factors existed and that they
outweighed the mitigating evidence. 	The court told the jury that

23 	No. 20040262
the State had the burden of proof. 	And it instructed the jury
that it either had to reach a “unanimous verdict of death” or
return a verdict stating that it could not reach a unanimous
verdict, in which case the court was “required to impose a
sentence of life imprisonment.”
¶65 	Taylor claims the court should have given the jury an
instruction defining the presumption of life, but he has not
cited any authority indicating that he was entitled to such an
instruction. 	While his definition of life imprisonment--that
“the defendant will be incarcerated . . . for the remainder of
his natural life, unless and if ever, he is paroled”--may have
been a correct definition of the term, a correct statement of law
does not automatically entitle a defendant to a jury instruction.
Nevertheless, had the jury been given this instruction, we do not
think it would have made a difference in the sentence.
¶66 	Moreover, while Taylor argues the trial court’s
instructions failed to inform the jury of the meaning of “beyond
a reasonable doubt,” our review of the record shows that the
court read to the jury the following:
Reasonable doubt . . . means a doubt that is
based on reason and one which is reasonable
in view of all the evidence. 	It must be a
reasonable doubt and not a doubt which is
merely fanciful or imaginary or based on
wholly speculative possibility. 	Proof beyond
a reasonable doubt is that degree of proof
which satisfies the mind, convinces the
understanding of those bound to act
conscientiously upon it and obviates all
reasonable doubt. 	A reasonable doubt is a
doubt which reasonable men and women would
entertain, and it must arise from the
evidence or lack of evidence in this case.
Taylor cannot prevail on his argument that this instruction was
improper because it is inadequately briefed; he fails to explain
what parts of the above instruction were inadequate or what the
instruction should have said. 	Furthermore, it does not appear
that this instruction was improper at the time it was given.
This court approved a nearly identical instruction several years
later in State v. Robertson, 932 P.2d 1219 (Utah 1997), because
the instruction (1) “contained a clear and unambiguous statement
that the State’s proof must obviate all reasonable doubt”;
(2) “did not define reasonable doubt in terms of the more weighty
decisions in life”; and (3) “articulated an appropriate

1 In Reyes, this court abandoned the “obviate all reasonable
doubt” requirement, 2005 UT 33, ¶ 30, and authorized the use of
the Federal Judicial Center’s “beyond a reasonable doubt”
standard as a “safe harbor” instruction, id. ¶ 37. 	However, we
noted that the Federal Judicial Center’s standard was not the
only permissible definition and that other instructions could be
used as long as they satisfied the principles announced in Reyes.
Id. ¶ 38.
No. 20040262 	24
definition of reasonable doubt.” 	Id. at 1232-33 (internal
quotation marks omitted). 	While Robertson has since been
overruled and the requirements for proper reasonable doubt
instructions have changed, see State v. Reyes, 2005 UT 33, ¶¶ 30,
35-38, 116 P.3d 305, 1 Taylor cannot show that the trial court’s
instruction was incorrect when it was given. 	Nevertheless, even
if it had been inaccurate, we do not think the given instruction
prejudiced the outcome of the sentencing proceeding.
¶67 	Based on the above, Taylor has not shown that he was
prejudiced by the jury instructions. 	Thus, he cannot show that
his trial counsel was ineffective for failing to object, and he
cannot show that his appellate counsel missed an obvious claim
that would have succeeded on appeal.
IV. 	THE VOIR DIRE PROCESS WAS ADEQUATE TO ENSURE
THE EMPANELMENT OF A FAIR AND IMPARTIAL JURY
¶68 	Taylor claims that his appellate counsel was
ineffective for not challenging trial counsel’s failure to
prepare and submit proposed voir dire questions and for not
challenging the trial court’s refusal to let trial counsel ask
jurors if they felt it was their job to seek revenge or whether
they believed life in prison was a more severe penalty than
death. 	The post-conviction court denied Taylor’s claims, holding
that the questions the trial court asked the jury “covered all of
the relevant subject areas necessary to select a fair and
impartial jury.”
¶69 	Under the Fourteenth Amendment to the United States
Constitution, a defendant is entitled to question jurors about
“the relevant subject area of potential bias.” 	State v.
Piansiaksone, 954 P.2d 861, 867 (Utah 1998) (citing Mu’Min v.
Virginia, 500 U.S. 415, 431 (1991)). 	Nevertheless, voir dire may
be improper even if it satisfies the Fourteenth Amendment if it
does not “enable[] litigants and their counsel to intelligently
exercise peremptory challenges” and is not conducted in such a
way that, to the extent possible, it “‘eliminate[s] bias and

2 While the court permitted trial counsel to ask this
question, trial counsel did not ask it to all of the jurors who
served in this case.
25 	No. 20040262
prejudice from the trial proceedings.’” 	Id. (quoting State v.
James, 819 P.2d 781, 798 (Utah 1991)). 	“Indeed, the fairness of
a trial may depend on the right of counsel to ask voir dire
questions designed to discover attitudes and biases, both
conscious and subconscious, even though [such attitudes] would
not have supported a challenge for cause.” 	Id. at 867-68
(internal quotation marks omitted).
¶70 	“The scope and conduct of voir dire examination is
within the discretion of the trial judge.” 	Id. at 867. 	We have
emphasized that “trial courts should be permissive in allowing
voir dire questions and should exercise their discretion in favor
of allowing counsel to elicit information from prospective
jurors.” 	Id. at 868. 	Nevertheless, “trial judges are not
compelled to permit every question that . . . might disclose some
basis for counsel to favor or disfavor seating of a particular
juror.” 	Id. 	Nor do we think a defendant is entitled to “ask
questions in a particular manner.” 	Id. at 867 (“[A]s long as the
relevant subject area of potential bias was covered, the
Fourteenth Amendment was not violated by the failure to ask
questions in a particular manner.” (citing Mu’Min, 500 U.S. at
431)). 	Thus, when we review a trial court’s voir dire decisions
to determine whether the court abused its discretion we ask
“‘whether, considering the totality of the questioning, counsel
was afforded an adequate opportunity to gain the information
necessary to evaluate jurors.’” 	Id. at 868 (quoting State v.
Bishop, 753 P.2d 439, 448 (Utah 1988)).
¶71 	We conclude that Taylor’s trial counsel was given an
adequate opportunity to gain the information necessary to
evaluate the prospective jurors. 	While the trial court did not
allow trial counsel to ask jurors whether they felt it was their
duty to seek revenge or to ask whether they felt life in prison
was a more severe penalty than death, the trial court did allow
counsel to ask the jurors whether they considered life to be a
severe sentence. 2 	The jurors also were asked whether they felt
death was appropriate in all homicide cases or whether life
imprisonment might be appropriate in some cases; whether they
could impose the death penalty if the State met its burden and
impose life if the State did not; whether they had any concerns
about being criticized for either imposing or not imposing the
death penalty; whether they knew anything about the crime, the
current case, or the Deli case; and whether they had already
formed an opinion regarding the appropriate penalty. 	The above

No. 20040262 	26
questions not only exposed juror biases regarding the death
penalty versus life imprisonment but also gave trial counsel
enough information to intelligently exercise his peremptory
strikes. 	We do not believe the trial court abused its discretion
by declining to permit trial counsel to ask about whether the
jurors believed it was their role to seek revenge or whether they
thought life imprisonment was more severe than the death penalty.
Because the trial court did not abuse its discretion, appellate
counsel was not ineffective for failing to appeal the trial
court’s decision, and Taylor’s claim fails.
¶72 	We likewise reject Taylor’s claim that trial counsel
was ineffective for failing to submit proposed voir dire
questions to the trial court before jury selection. 	While this
may be prudent in many cases, Taylor has not cited any authority
that would require counsel to submit voir dire questions in
advance. 	Moreover, Taylor has not identified the questions that
trial counsel should have submitted or the additional information
these questions might have uncovered. 	Therefore, Taylor has not
carried his burden to show ineffective assistance with respect to
either trial or appellate counsel. 	We therefore affirm the post-
conviction court on this issue.
V. 	TRIAL COUNSEL’S PERFORMANCE DURING
JURY SELECTION WAS REASONABLE
¶73 	Taylor argues that his appellate counsel was
ineffective for not challenging trial counsel’s ineffectiveness
for either failing to request the removal for cause of several
jurors or failing to exercise a peremptory strike to remove them.
To show that appellate counsel missed an obvious claim by not
challenging his trial counsel’s performance during jury
selection, Taylor must prove that trial counsel’s performance
fell below an objective standard of reasonable judgment and that
counsel’s deficient performance was prejudicial. 	Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984). 	Proving that his
counsel’s performance fell below an objective standard of
reasonableness requires Taylor to “rebut the strong presumption
that under the circumstances, the challenged action might be
considered sound trial strategy.” 	Carter III, 2001 UT 96, ¶ 40,
44 P.3d 626 (internal quotation marks omitted). 	“In the context
of jury selection, this is a difficult task” because a defendant
must not only overcome the presumption that trial counsel made a
conscious choice to keep the juror but also overcome the
presumption that trial counsel’s decision to keep a juror
constituted effective assistance of counsel. 	Id.

27 	No. 20040262
¶74 	We have recognized that evaluating trial counsel’s jury
selection decisions is “an inherently speculative exercise.” 	Id.
¶ 42. 	This is due, in part, to the fact that “a trial attorney’s
decisions . . . may be based on little more than personal
preference,” State v. Litherland, 2000 UT 76, ¶ 23, 12 P.3d 92,
and the fact that we are confined to reviewing a “bare
transcript,” Carter III, 2001 UT 96, ¶ 40. 	We do not have the
benefit of “observing the juror’s demeanor, personality, or
interaction with others.” 	Id. ¶ 41. 	Moreover, we have
recognized that decisions that appear counterintuitive may in
fact be reasonable. 	“For instance, an attorney may make a
reasoned judgment that a prospective juror’s consciousness of,
and concern for, his or her own potential bias actually provides
a more sure foundation for confidence in that juror’s reasoning
processes.” 	Litherland, 2000 UT 76, ¶ 22.
¶75 	While trial counsel’s jury selection decisions are
presumed to be reasonable, the presumption is not irrebuttable.
Id. ¶ 25. 	A defendant may rebut the presumption that trial
counsel’s decisions were the result of plausibly justifiable
conscious choices or preferences by showing
(1) that defense counsel was so inattentive
or indifferent during the jury selection
process that the failure to remove a
prospective juror was not the product of a
conscious choice or preference; (2) that a
prospective juror expressed bias so strong or
unequivocal that no plausibly countervailing
subjective preference could justify failure
to remove that juror; or (3) that there is
some other specific evidence clearly
demonstrating that counsel’s choice was not
plausibly justifiable.
Id.
¶76 	In this case, Taylor claims that his trial counsel was
ineffective for either failing to challenge for cause or failing
to use a peremptory strike to remove four jurors--Richards,
Moore, Jenkins, and Chamberlain. 	Taylor claims that trial
counsel was ineffective for failing to remove the aforementioned
jurors both because he was “so inattentive or indifferent” during
the selection process that his failure to remove the challenged
jurors “was not the product of conscious choice” and because the
challenged jurors “expressed bias so strong . . . that no
plausible countervailing subjective preference could justify
failure to remove [them].” 	To determine whether Taylor’s claims

No. 20040262 	28
have any merit, we assess the information the challenged jurors
disclosed during voir dire.
¶77 	Juror Richards informed the court that prosecutor
Robert Adkins (Adkins) had served as his attorney in negotiating
a “land contract,” but that this was the only association he had
ever had with Adkins. 	The record does not disclose the amount of
time that had passed between the land transaction and Taylor’s
trial. 	Richards told the court that the association he had with
Adkins concerning the land contract would not prevent him from
being impartial. 	He likewise told the court that he would be
willing to vote for life imprisonment if the State failed to
satisfy its burden of proof, that he was not worried about being
criticized if the jury did not impose the death penalty, that he
could follow the court’s instructions, and that he had not formed
an opinion about the appropriate punishment in this case.
Moreover, when questioned about his feelings regarding the death
penalty, he replied that he “believe[d] in capital punishment,
but it would have to be after the evidence was weighed very
heavily without any reasonable doubt.” 	Trial counsel did not
challenge Juror Richards for cause.
¶78 	Juror Moore informed the court that he was “acquainted
with Robert Adkins and his family,” but that he did not socialize
with Adkins. 	While he disclosed that he worked with Adkins’
mother at the LDS Temple, he stated that he could be “fair and
impartial” to both the State and Taylor despite the association.
When asked about the death penalty, he stated that he “[did not]
like to see anybody die,” but that there were circumstances that
would justify imposing the death penalty. 	He stated that he
would be willing to impose the death penalty if the State
satisfied its burden of proof and impose a life sentence if the
State failed to meet its burden.
¶79 	Trial counsel asked follow-up questions regarding
Moore’s ties to the prosecutor. 	Specifically, he asked whether
Moore felt “independent enough of Mr. Adkins [that he] would not
have to explain a decision . . . to him” and whether Moore would
be compelled to agree with the State’s arguments due to his
relationship with Adkins and his family. 	Moore stated that he
would not be influenced by his acquaintance with the Adkins’
family and would make an independent decision.
¶80 	Taylor’s trial counsel ultimately did challenge Moore
for cause, citing concerns about comments Moore made regarding
“the doctrine of blood atonement.” 	The court asked Moore whether
he believed in the doctrine of blood atonement, to which he
responded affirmatively. 	However, upon later questioning it

3 Taylor has not argued in this appeal that the trial court
erred in passing Moore for cause. 	Moreover, it does not appear
that he could have challenged the trial court’s decision where he
did not attempt to cure the court’s failure to remove Moore by
exercising a peremptory strike. 	State v. Baker, 935 P.2d 503,
506 (Utah 1997). 	Thus, he can claim only that his trial counsel
was ineffective for failing to use a peremptory strike to remove
Moore.
Rule 18(e) of the Utah Rules of Criminal Procedure provides
a list of grounds a court should consider when determining
whether to remove a juror for cause. 	However, the ultimate
decision to remove or pass a prospective juror for cause lies
within the discretion of the trial court. 	See, e.g., State v.
Wach, 2001 UT 35, ¶ 25, 24 P.3d 948 (“[A] trial court’s
determination of whether to excuse a prospective juror for cause
should not be reversed absent an abuse of discretion.”). 	In
2001, rule 18 was amended and an advisory committee note was
added to guide courts in exercising their discretion. 	The
current advisory committee note addresses the “tendency of trial
court judges to rule against a challenge for cause in the face of
legitimate questions about a juror’s biases.” 	Utah R. Crim. P.
18 advisory committee note. 	The advisory committee note cites
this court’s decision in State v. Carter (Carter II), 888 P.2d
629 (Utah 1995), wherein we stated that we were “perplexed by the
trial courts’ frequent insistence on passing jurors for cause in
death penalty cases when legitimate concerns about their
suitability have been raised during voir dire” and troubled by
trial courts’ tendencies to “push the edge of the envelope” in
making for-cause determinations. 	Utah R. Crim. P. 18 advisory
(continued...)
29 	No. 20040262
became clear that he believed the doctrine of blood atonement
referred to the Christian belief that Jesus Christ died for the
sins of the world and not to the principle that anyone who kills
must be killed. 	When specifically asked whether he believed that
one who kills should be killed, he stated that he thought so and
that he was troubled by the prospect of taxpayers paying for the
costs associated with a life sentence. 	The court rehabilitated
Moore, however, by asking whether he would impose the death
penalty based on the doctrine that one who kills should be killed
or based on taxes. 	Moore responded that he would not impose the
death penalty based on those grounds and that he had not formed
an opinion about the appropriate penalty in Taylor’s case. 	Based
upon that testimony, the State opposed trial counsel’s challenge.
The trial court agreed with the State and declined to remove
Juror Moore for cause. 	Although he had sought to have him
removed for cause, Taylor’s trial counsel did not use a
peremptory strike to remove Moore. 3

3 (...continued)
committee note (quoting Carter II, 888 P.2d 629 (Utah 1995)). 	In
light of the concern expressed in Carter II, the advisory
committee note instructs judges to allow thorough questioning so
that parties have “a meaningful opportunity to explore grounds
for challenges for cause” and “encourage[s] judges to exercise
greater care in evaluating challenges for cause and to resolve
legitimate doubts in favor of removal.” 	Utah R. Crim. P. 18
advisory committee note.
The trial court in Taylor’s case did not have the benefit of
the advisory committee note. 	Moreover, in mentioning the
committee note, we do not suggest that the trial court abused its
discretion in this case. 	Rather, we mention it to encourage
trial courts in future cases, particularly capital cases, to seek
guidance from the advisory committee note when asked to remove
jurors for cause.
No. 20040262 	30
¶81 	Juror Jenkins informed the court that he was the
director of the Summit County Health Department. 	He stated that
he knew both prosecutors and two of the non-victim fact witnesses
either in his current position or in previous positions with
Summit County or the state. 	He stated that Adkins was a
“lifelong friend” that he knew from working for Summit County,
but that he did not socialize with him or his family. 	He
likewise stated that he did not socialize with prosecutor
Christiansen or his family. 	On appeal, Taylor argues that
Jenkins had an attorney-client relationship with Adkins and
Christiansen. 	However, we cannot find any evidence of this in
the record. 	Jenkins did state that he had worked with both
prosecutors “on ordinances” in his capacity as the director of
the Health Department, but there is no indication that he
personally was a client of the prosecutors.
¶82 	After Jenkins disclosed his connection to the
prosecutors, the court asked whether he felt he could take a
position contrary to the prosecution without fear of criticism,
to which Jenkins responded affirmatively. 	Jenkins told the court
that he did not think his relationship with the prosecutors would
prevent him from being fair and impartial, and that he did not
feel that he would have to explain his decision to them. 	He also
told the court that he would be willing to impose the death
penalty if the State met its burden of proof and to impose a life
sentence if the State did not, that he was not worried about
being criticized for the jury’s decision, and that he had not
formed an opinion about what the appropriate penalty would be.
Trial counsel did not challenge this juror.

31 	No. 20040262
¶83 	Juror Cheryl Chamberlain disclosed that her cousin was
Judge Edward Watson, who presided over the preliminary hearing in
this case, and that her son was married to Adkins’ sister. 	No
one further explored her connections to the Judge or Adkins, but
Chamberlain did state that she would not automatically impose the
death penalty in murder cases, that she would be willing to
follow the court’s instructions, that she would be willing to
vote for life imprisonment if the State failed to meet its burden
of proof, and that she recognized there might be some deliberate
murder cases where death would not be the appropriate penalty.
She stated that she thought she might be criticized for either
imposing or not imposing the death penalty, but that she would
not be bothered by the criticism and that she would not let it
influence her decision. 	When asked if she had heard anything
about this case before coming to court, she stated that she had
heard about it in the news, but that she had not heard about it
from anyone with personal knowledge of it. 	She did not list
either her cousin or her daughter-in-law as sources of
information. 	Moreover, she told the court that she had not
formed an opinion about the appropriate penalty based on what she
had heard and that she could approach the case with an open mind.
Trial counsel did not challenge this juror.
¶84 	After reviewing the transcript in this case, we agree
with the post-conviction court’s conclusion that trial counsel’s
“performance reflected conscious decision-making” and that he
did not appear “inattentive, ignorant, [or] indifferent to
possible indications of bias.” 	The transcript indicates that
throughout voir dire, trial counsel asked questions to collect
information about the prospective jurors. 	With respect to the
four challenged jurors, trial counsel asked some or all of them
whether they considered life in prison to be a severe sentence,
whether they felt like they would be influenced by the fear that
they would have to explain their decision to someone, whether
they felt like their decision would be affected by their
connection to the prosecutors, and whether they would be able to
keep an open mind regarding the appropriate penalty knowing
Taylor deliberately killed two individuals in an unprovoked
manner. 	Trial counsel also asked Juror Jenkins questions
specifically relating to his ability to be fair in light of his
working relationship with the prosecutors and challenged Juror
Moore for cause. 	This participation defeats Taylor’s claim that
trial counsel was so “inattentive or indifferent” that the
failure to remove the jurors was not the product of a conscious
choice or preference.
¶85 	We likewise agree with the post-conviction court’s
holding that the four challenged jurors did not “express[] bias

No. 20040262 	32
so strong or unequivocal that no plausible countervailing
subjective preference could justify failure to remove that
juror.” 	While the four jurors disclosed that they were friends
or acquaintances with one or both of the prosecutors, none of the
jurors said that they socialized with them. 	Moreover, they all
stated that they could be open-minded and that their connection
to one or both of the prosecutors or the prosecutors’ family
members would not influence their decision. 	They all stated that
they would be willing to follow the court’s instructions, weigh
the evidence, and impose a life sentence if the State failed to
satisfy its burden of proof. 	Each one also agreed that there may
be circumstances in which a defendant who deliberately killed
another person might not deserve the death penalty. 	Based on the
four jurors’ statements in the transcript regarding their
abilities to be fair and open-minded, we do not think that any of
them “indicated the sort of strong or unequivocal bias that would
mandate their removal from the jury.” 	Litherland, 2000 UT 76,
¶ 28.
¶86 	Furthermore, a couple of the jurors made statements
indicating that they were less likely to be biased toward death
than other jurors may have been. 	Juror Richards stated that he
believed in capital punishment only “after the evidence was
weighed very heavily and without any reasonable doubt,” and Juror
Moore stated that he “[did not] like to see anybody die.” 	While
Moore did state that he believed in the doctrine of blood
atonement, after further questioning it became clear that he did
not understand what the court meant by that term. 	Likewise, he
retreated from his comment that he did not like to see taxpayers
carry the financial burden associated with life in prison by
affirming that he would not vote for or against the death penalty
based on tax considerations. 	We therefore cannot conclude that
trial counsel had no strategic reasons for keeping Richards and
Moore and instead exercising his peremptory strikes on other
jurors.
¶87 	Because Taylor failed to show that counsel was
indifferent, to demonstrate that the jurors were so unequivocally
biased that no plausible preference could justify not removing
them, or to provide any other specific evidence “clearly
demonstrating that counsel’s choice was not plausibly
justifiable,” Litherland, 2000 UT 76, ¶ 25, he has not overcome
the presumption that counsel was acting reasonably and his claim
fails. 	We thus do not need to reach the prejudice part of the
Strickland test. 	We likewise need not address Taylor’s arguments
concerning the alternate or other prospective jurors.

33 	No. 20040262
¶88 	Moreover, because we conclude that trial counsel did
not perform deficiently during the jury selection process, we
cannot hold that appellate counsel missed an obvious claim that
would have led to a different result on appeal. 	We therefore
reject Taylor’s claim that his appellate counsel was ineffective
for failing to challenge his trial counsel’s conduct with respect
to jury selection.
VI. 	THE LOWER COURT DID NOT ERR IN NOT ORDERING A COMPETENCY
EVALUATION AT SENTENCING AND AT THE RULE 23B HEARING
¶89 	Taylor argues that his appellate counsel should have
argued that (1) his trial counsel was ineffective for failing to
file a motion to determine competency and that the trial court
erred in failing to instigate competency proceedings; and (2) the
rule 23B court erred in failing to grant appellate counsel’s
motion to initiate a competency evaluation to determine whether
Taylor was competent to proceed. 	We address each claim in turn.
A. 	Taylor Has Not Shown Trial Counsel Was Ineffective for
Failing to File a Competency Motion at the Penalty Phase
¶90 	Taylor slit his wrists in an apparent suicide attempt
on the morning of the first day of the penalty phase. 	The
penalty proceeding was delayed so that Taylor could obtain
medical treatment for his cuts, which apparently resulted only in
the loss of a minor amount of blood. 	In the meantime, the trial
court contacted Dr. Mark Rindflesh, one of the psychiatrists who
had already examined Taylor to determine whether he met the test
for insanity, to examine Taylor again and determine whether he
was competent to proceed. 	Dr. Rindflesh concluded that Taylor
was competent to proceed. 	Dr. Rindflesh opined that Taylor was
“certainly capable” of assisting his counsel even if Taylor chose
not to aid in his defense. 	Dr. Rindflesh also told the court
that he “ha[d] no question” that Taylor would be able to
understand the nature of the proceedings against him because
Taylor had been able to weigh all of the implications of the
possible penalties. 	Finally, Dr. Rindflesh testified that while
Taylor was depressed, “the severity of the depression [was] not
so great that it render[ed] him incompetent in the eyes of the
court.”
¶91 	Taylor’s trial counsel also spoke to the court
regarding Taylor’s competency. 	Trial counsel told the court that
he had been with Taylor for the four hours prior to Dr.
Rindflesh’s arrival. 	During this four-hour period, trial counsel
and Taylor were “involved in extensive discussions on a variety
of issues.” 	Based on these discussions, trial counsel told the

No. 20040262 	34
court that he was “satisfied that Mr. Taylor [was] aware of what
[was] going on” and that he believed Taylor was competent to
assist him in the presentation of evidence. 	Trial counsel did
not request a competency hearing and told the court that he was
“comfortable . . . that [the court] could now proceed at any time
with the penalty phase.”
¶92 	Under the Due Process Clause of the United States
Constitution, “only competent defendants are required to stand
trial.” 	State v. Young, 780 P.2d 1233, 1236 (Utah 1989) (citing
Dusky v. United States, 362 U.S. 402 (1960) (per curium)). 	A
defendant is considered competent if “the defendant has
sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding and has a rational as
well as a factual understanding of the proceedings against him.”
Jacobs v. State, 2001 UT 17, ¶ 12, 20 P.3d 382 (citations and
internal quotation marks omitted).
¶93 	“A trial court must hold a competency hearing when
there is a substantial question of possible doubt as to a
defendant’s competency at the time of the guilty plea.” 	Id.
¶ 13 (citations and internal quotation marks omitted). 	When
determining whether there was a substantial question of possible
doubt, we look to “what the trial court did in light of what it
then knew of the defendant.” 	Young, 780 P.2d at 1237 (citation
omitted). 	We have noted, however, that
“[f]itness to stand trial is a much narrower
concept than moral or social wellness, and
thus the fact that a defendant is twisted and
disturbed does not necessarily mean he is
unfit for trial. 	The fact that a person is
mentally ill, displays bizarre, volatile, and
irrational behavior, or has a history of
mental illness, does not mean that he or she
is incompetent to stand trial. 	A defendant
may be fit for trial even though his mind is
otherwise unsound.”
Jacobs, 2001 UT 17, ¶ 16 (quoting 21 Am. Jur. 2d Criminal Law
§ 97 (1998) (footnotes omitted)).
¶94 	Based on our review of the record, we do not think that
there was a “substantial question of possible doubt” regarding
Taylor’s competency. 	The court heard testimony from a
psychiatrist who had evaluated Taylor following the suicide
attempt and concluded that Taylor was able to understand the
nature of the penalty proceeding and the implications of its

35 	No. 20040262
possible outcomes and that Taylor had the ability to assist
counsel if he chose to do so. 	This testimony was corroborated by
trial counsel. 	While the suicide attempt indicated that Taylor
was depressed, depression does not necessarily indicate that
Taylor was not competent. 	Thus, Taylor cannot show that the
trial court erred in failing to order a competency proceeding.
¶95 	We likewise reject Taylor’s claim that trial counsel
was ineffective for failing to request a competency hearing.
Trial counsel could reasonably rely on his own extensive
interactions with Taylor and on Dr. Rindflesh’s testimony that
Taylor was competent. 	Moreover, Taylor has not offered any
evidence to show that, had a competency hearing been requested
and granted, the court would have found evidence of incompetence.
He also has not argued that he was incompetent at any point
during the proceedings. 	He therefore has not demonstrated how he
was prejudiced by trial counsel’s failure to request such a
proceeding.
¶96 	Given our holding that the trial court did not err in
not ordering a competency evaluation, Taylor cannot succeed on
his claim that appellate counsel was ineffective for failing to
raise this issue on appeal.
B. 	The 23B Court Did Not Err in Denying Appellate Counsel’s
Motion for a Competency Evaluation
¶97 	The issue of Taylor’s competence was also raised in the
judge’s chambers during the ineffective assistance of counsel
hearing under rule 23B of the Utah Rules of Appellate Procedure.
Midway through the 23B hearing, appellate counsel was notified by
the prison that Taylor “no longer wished to be brought to the
[courthouse] and that he wasn’t [going to] return[].” 	Taylor
reiterated this intention to appellate counsel when appellate
counsel met with Taylor. 	When appellate counsel asked whether
Taylor wanted to go forward with the rule 23B proceeding, Taylor
stated, “I’m too depressed. 	I’m too depressed. 	I can’t do this
anymore.” 	Appellate counsel told the court that because Taylor
was not being responsive he did not have a clear picture of
whether Taylor wanted to proceed with the rule 23B hearing or
whether he knew he could appeal without having a rule 23B
hearing.
¶98 	The 23B court instructed appellate counsel to speak
with Taylor again and determine (1) whether Taylor was refusing
to come to court; (2) whether Taylor still wanted the rule 23B
hearing to go forward; and (3) whether Taylor would be willing to

No. 20040262 	36
come into court long enough for the court to ask him some
questions regarding whether to continue the proceeding.
¶99 	When the in-chambers conference reconvened, Taylor’s
appellate counsel informed the court that Taylor was able to
respond clearly to several of his questions. 	He also told the
court that Taylor was willing to answer the court’s questions and
that Taylor had told him he wanted the 23B hearing to move
forward, but that he did not want to be present. 	Taylor also
told his appellate counsel that he did not want to return the
next day, but that he knew the prison would make him.
¶100 The 23B judge then questioned Taylor in open court.
Taylor appropriately responded to all but two of the judge’s
questions. 	For example, Taylor answered the judge’s questions
regarding whether he desired to return to court, whether he had
discussed his desire with his attorney, and whether he was cold
in the courtroom. 	Taylor also stated, in response to questions,
that he would “[prefer not] to attend” the proceeding, that he
would “rather these proceedings not be dismissed, but [he didn’t]
know if [he would] attend,” and that he was cold in the courtroom
but could not wear his sweatshirt “according to prison policy.”
When asked if being cold was the only reason he did not want to
attend the proceeding, he responded, “This hearing depresses me.”
¶101 The record reveals that Taylor did not respond to two
of the judge’s questions. 	The first question was whether he
understood that if he did not return to court the State would
likely move to dismiss the rule 23B hearing. 	The record
indicates that when the judge asked this question, Taylor turned
to look at his counsel. 	Counsel then revealed that he had told
Taylor to ask him if he did not understand any of the judge’s
questions. 	The judge then attempted to explain the question more
clearly. 	This time, Taylor responded that he understood. 	When
asked whether he had any questions, Taylor did not respond, but
indicated that he wished to speak to his counsel. 	Taylor and his
counsel had an off-record discussion, following which counsel
asked, on Taylor’s behalf, whether it was possible for Taylor to
waive his right to be present.
¶102 After the meeting in open court, the parties again met
with the judge in chambers. 	At this time, Taylor’s counsel filed
a motion to inquire into Taylor’s sanity. 	The 23B court denied
the motion, concluding that Utah Code section 77-15-5, which
governs staying proceedings when a petition of incompetency is
filed, did not require the court to stay a rule 23B hearing due
to a competency claim. 	Specifically, the judge noted that the
rule 23B hearing was being conducted at Taylor’s request, that

37 	No. 20040262
the rule 23B proceeding was not a prosecutorial proceeding
against Taylor, and that Taylor bore the burden of proof on the
allegations that he received ineffective assistance of counsel.
The judge further noted the following:
That the Court has observed Mr. Taylor
throughout this proceeding, has found him to
appear alert, composed; that he has been
discussing matters with counsel at counsel
table; has been taking notes. 	He’s had
colloquy with the Court. 	In that colloquy
with the Court, he was responsive, appeared
to understand the matters discussed and to
make his wishes known to the Court.
¶103 During this final in-chambers meeting, Taylor told his
counsel that he had changed his mind and that he wished to remain
and return to the court so that the rule 23B proceedings could
continue. 	When questioned by the judge, he told the judge that
he did indeed wish to be present, that his attorney had advised
him that he had a right to be here, and that he had been advised
to notify the court if he was uncomfortable for any reason and
the court would try to accommodate him. 	Taylor did not, however,
withdraw his competency motion.
¶104 Taylor argues that the 23B court erred in denying his
counsel’s motion for a competency evaluation and that appellate
counsel erred in not raising this issue on appeal. 	Taylor’s
claims fail, however, because Taylor did not raise them in his
Amended Petition for Post-Conviction Relief. 	He raised them for
the first time in this appeal. 	This court generally does not
address claims that have been raised for the first time on
appeal. 	State v. Winfield, 2006 UT 4, ¶ 23, 128 P.3d 1171. 	“In
capital cases, however, this court will review issues not raised
below for plain error, unless the defendant invited the error at
trial.” 	State v. Arguelles, 2003 UT 1, ¶ 41, 63 P.3d 731.
¶105 Here, Taylor does not argue that the 23B court
committed plain error in denying Taylor’s petition for a
competency evaluation. 	Nor do we believe he would have succeeded
on such a claim because Taylor’s behavior did not raise “a
substantial question of possible doubt” regarding his competency.
Jacobs, 2001 UT 17, ¶ 13. 	From the record, it appears that
Taylor was able to respond to the 23B court’s questions and able
to consult with his attorney. 	The judge observed that Taylor was
alert and composed, was discussing matters with counsel and
taking notes, was responsive during the court’s colloquy, and was
able to make his wishes known to the court. 	We therefore

No. 20040262 	38
conclude that the 23B court did not commit plain error in denying
Taylor’s motion for a competency evaluation. 	As a result, Taylor
cannot prevail on his claim that appellate counsel was
ineffective for failing to challenge the 23B court’s decision on
appeal.
VII. 	THE TRIAL COURT’S ADMISSION OF THE SCOTT MANLEY TAPE
DID NOT VIOLATE TAYLOR’S CONSTITUTIONAL RIGHTS
¶106 Taylor asserts that appellate counsel was ineffective
for failing to argue that his rights to due process and
confrontation were violated at sentencing by the admission of a
recorded statement by Scott Manley. 	While Taylor was at the
Tiede cabin, he telephoned Manley, an inmate at the halfway house
from which Taylor had escaped. 	At the penalty phase, the State
called Manley as a witness to relate the contents of their
conversation. 	Manley refused to testify because he was in prison
and did not want to be viewed as a snitch. 	As a result, the
State played a taped statement that Manley made to the police
shortly after the murders. 	On the tape, Manley stated that
Taylor had called him and told him that he was at a cabin waiting
to steal a car. 	When Manley asked Taylor what he would do if the
cabin’s occupants returned, Taylor allegedly responded, “[W]ho
cares, they’re wasted.”
¶107 Trial counsel objected to the admission of the
recording, arguing that it was hearsay and unfairly prejudicial.
The trial court noted that the tape “may [have] fit within an
exception to the hearsay rule . . . but even at that, . . . the
court [was] at liberty to introduce evidence that is probative of
the issues in a penalty hearing.” 	Therefore, the court allowed
the tape to be entered into evidence. 	Trial counsel then
preserved his objection, stating that he objected on the grounds
of hearsay, the Sixth Amendment to the United States
Constitution, and article I, section 12 of the Utah Constitution.
At closing argument, the State referred to the tape to argue that
the murders had been premeditated and argued that the tape was
“the most significant [evidence]” the jury had heard. 	Although
trial counsel preserved his objection to the tape, appellate
counsel did not raise this issue on appeal. 	The post-conviction
court denied Taylor’s claim that appellate counsel was
ineffective, holding that the tape’s admission was not erroneous
and that any error in its admission would have been harmless.
¶108 Like the post-conviction court, we disagree with
Taylor’s claim that appellate counsel was ineffective for failing
to challenge the sentencing court’s admission of the tape. 	When
Taylor filed his appeal, hearsay evidence generally was

4 The United States Supreme Court’s decision in Crawford v.
Washington, 541 U.S. 36 (2004), which held that testimonial
hearsay is not admissible at the guilt phase of trial without
“unavailability and a prior opportunity for cross-examination,”
has triggered some debate as to whether confrontation rights
apply to sentencing. 	Id. at 68. 	At least one court has
suggested that the right to confrontation may apply to capital
sentencing proceedings. 	See United States v. Brown, 441 F.3d
1330, 1361 & n.12 (11th Cir. 2006) (noting that Crawford does not
apply in the non-capital sentencing context, but hinting that, if
given the opportunity, it may hold that the right to cross-
examine witnesses applies to capital sentencing hearings based on
its belief that “death is different” and on its prior holding in
the state habeas context that “the constitutional right to cross-
examine witnesses applies to capital sentencing hearings”
(citation omitted)); see also John G. Douglass, Confronting
Death: Sixth Amendment Rights at Capital Sentencing, 105 Colum.
L. Rev. 1967 (2005) (positing the theory that following the
Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000),
Ring v. Arizona, 536 U.S. 584 (2002), Blakely v. Washington, 542
U.S. 296 (2004), and United States v. Booker, 543 U.S. 220
(2005), all the Sixth Amendment guarantees, including
confrontation, apply to sentencing). 	However, most federal
courts have maintained their pre-Crawford positions that neither
(continued...)
39 	No. 20040262
considered to be admissible at sentencing. 	See Utah Code Ann.
§ 76-3-207(2)(b) (1996) (stating that in a capital sentencing
proceeding, “[a]ny evidence the court considers to have probative
force may be received regardless of its admissibility under the
exclusionary rules of evidence”). 	All that was required was that
the hearsay be reliable and that the defendant be given the
opportunity to rebut the evidence. 	See State v. Carter
(Carter II), 888 P.2d 629, 646 (Utah 1995), superseded on other
grounds by Utah Code Ann. § 76-3-207(2)(a)(iii) (1999) (stating
that transcript of prior testimony may not be read into evidence
at a capital sentencing phase unless the party proffering the
evidence can show the witness was unavailable and “demonstrate
that the unavailable witness’s prior testimony bears sufficient
indicia of reliability”), superseded by statute on other grounds,
Crime Victim Rights Amendments, ch. 352, § 5, 1995 Utah Laws
1363; State v. Sanwick, 713 P.2d 707, 709 (Utah 1986)
(recognizing that hearsay evidence is generally admissible at
sentencing proceedings, but holding that the defendant must be
given the opportunity to rebut any hearsay evidence presented).
If the hearsay evidence satisfied both requirements, it was not
deemed to be a violation of either the Due Process Clause or the
Confrontation Clause. 4 	See, e.g., United States v. Katzopoulos,

4 (...continued)
the Confrontation Clause nor the Due Process Clause requires
confrontation at sentencing. 	See, e.g., United States v.
Katzopoulos, 437 F.3d 569, 576 (6th Cir. 2006) (stating that
nothing in Crawford required the court to “reverse its long-
settled rule of law that the Confrontation Clause permits the
admission of testimonial hearsay evidence at sentencing
proceedings”); United States v. Luciano, 414 F.3d 174, 179 (1st
Cir. 2005) (holding that Crawford did not require the alteration
of the court’s previous conclusion that “there is no Sixth
Amendment Confrontation Clause right at sentencing”). 	Because we
assess appellate counsel’s performance as of the time he decided
what issues to appeal, we need not address this issue here.
No. 20040262 	40
437 F.3d 569, 574 (6th Cir. 2006) (stating that before the United
States Supreme Court issued Crawford v. Washington, 541 U.S. 36
(2004), it was “well settled” that “testimonial hearsay was
admissible at sentencing if it bore some minimum indicia of
reliability”).
¶109 Thus, appellate counsel did not miss an obvious claim
at the time he filed Taylor’s first appeal because, although it
was hearsay, the Manley testimony would have been admissible as
long as it was reliable and Taylor had been given the opportunity
to rebut the evidence. 	Taylor was given the opportunity to rebut
the evidence at sentencing. 	He took the stand and told the jury
that he did not tell Manley that he and Deli were planning to
steal a car or that they were going to shoot or waste anybody.
¶110 Moreover, Manley’s testimony was not obviously
unreliable. 	Taylor argues that Manley’s statement was unreliable
because Manley was a suspected accomplice. 	Specifically,
Taylor’s brief states that when the police contacted the
supervising parole officer at the halfway house, “she . . . told
[the] police that Mr. Manley might somehow be involved in the
incident that occurred at the Tiede cabin either because he was
with Mr. Taylor or might have provided the firearm to Mr.
Taylor.” 	The record does not support this assertion. 	Our review
of the record reveals that the parole officer did not tell the
police that Manley was a suspected accomplice, but that she told
the officer that “Taylor may have been in the company of two
individuals and provided the names of Scott Manley” and one other
parolee. 	She also indicated that another probation officer had
“spoken to Manley about having a firearm in the last little while
but [had no] idea what developed there.” 	These statements do not
suggest that Manley was with Taylor at the time of the crime or
that he supplied Taylor with the murder weapon. 	It does not

41 	No. 20040262
appear that Manley was ever treated as a suspected accomplice to
this crime. 	Moreover, while Manley was suspected of a parole
violation for having a firearm in violation of the terms of his
parole and was an inmate at the halfway house, these facts do not
make his testimony so unreliable that it was a “dead-bang winner
on appeal.”
¶111 Moreover, even if Manley’s testimony was unreliable,
any error the court made in admitting the tape was harmless. 	The
Manley tape was not the only evidence of premeditation in this
case. 	The State also offered evidence that Taylor and Deli had
seen the Tiedes earlier in the week and knew the cabin was
occupied, that they waited at the cabin for twelve hours before
the Tiedes returned, that they made a video recording while at
the cabin, and that they saw unopened Christmas presents,
suggesting the family would return since it was only four days
before Christmas. 	Furthermore, the jury was presented with many
aggravating factors besides premeditation, including attempted
murder, kidnaping, arson, theft, and a high-speed flight from
police. 	Thus, the admission of the Manley statement does not
undermine our confidence in the result of the sentencing
proceeding. 	As a result, Taylor cannot show that his appellate
counsel’s performance was deficient because he missed an obvious
claim.
VIII. 	THE PROSECUTOR DID NOT COMMIT MISCONDUCT
¶112 Taylor claims that his appellate counsel was
ineffective for failing to claim prosecutorial misconduct. 	He
alleges that the prosecutors committed misconduct because they
discussed inadmissible evidence and called the jury’s attention
to evidence that it could not properly consider when reaching its
verdict. 	Taylor points to (1) the prosecution’s objections to
trial counsel’s attempts to ask jurors to compare the seriousness
between a life and death sentence and to trial counsel’s
questions about the Deli case; (2) the prosecution’s question to
the medical examiner asking him to rate this homicide “using a
one to ten ‘grossness’ scale” and the prosecutor’s use of this
assessment at closing argument; (3) the prosecution’s use of the
Manley tape to argue that the killings were premeditated; (4) the
prosecution’s suggestion at closing argument that death was the
only appropriate penalty because Taylor might escape from prison;
and (5) the prosecution’s instructions to the jury, at both
opening and closing arguments, that the jury did not have to find
Taylor guilty of the dismissed offenses to consider them
aggravating circumstances.

No. 20040262 	42
¶113 “Prosecutorial misconduct occurs when the prosecutor’s
comments call the jurors’ attention to matters not proper for
their consideration and when the comments have a reasonable
likelihood of prejudicing the jury by significantly influencing
its verdict.” 	State v. Reed, 2000 UT 68, ¶ 18, 8 P.3d 1025. 	We
reverse only when “the prejudice is such that there is a
reasonable likelihood the jury would have reached a more
favorable result absent the comments.” 	Id.
¶114 Taylor cannot show that either the prosecutor’s conduct
rose to the level of plain error or appellate counsel missed an
obvious claim. 	A prosecutor does not commit misconduct by
objecting to trial counsel’s voir dire questions. 	Rather, the
prosecutor’s objections in this case were part of normal trial
procedure. 	Moreover, the objections were not made before the
empaneled jury, but before only a few individual jurors and the
judge during the individual voir dire proceedings. 	Similarly,
the prosecutor in this case did not commit misconduct by
referring to the Manley tape. 	The Manley tape had been admitted
into evidence at the sentencing phase. 	As we discussed in
section VII, this was not erroneous. 	Thus, the prosecutor did
not refer the jury “to matters not proper for their
consideration” by calling attention to it or its strength as
evidence of premeditation during closing arguments. 	Id.
¶115 	Taylor likewise cannot show the prosecutor committed
misconduct when he stated in his closing argument that Taylor
posed an escape risk because he had escaped from the halfway
house. 	After the prosecutor made this comment, Taylor’s trial
counsel promptly objected and the trial court sustained the
objection, instructing the jurors that they should disregard the
prosecutor’s statement. 	When a court sustains an objection and
gives a curative instruction, a defendant must show that “the
[prosecutor’s] comment was so prejudicial as to defeat the
mitigating effect of the court’s . . . curative instructions.”
State v. Kohl, 2000 UT 35, ¶ 24, 999 P.2d 7. 	In this case,
Taylor has not shown that the comment defeated the mitigating
effect of the instruction. 	Indeed, his brief fails to mention
that his trial counsel objected to the comment or that the court
sustained the objection and gave the jury a curative instruction.
In any event, we do not think that the prosecutor’s comment
influenced the jury’s decision in light of the other aggravating
factors.
¶116 Finally, Taylor cannot show that the prosecutor’s
questions about and reference to the “grossness scale” or the
prosecutor’s inaccurate instructions regarding the State’s burden
to prove aggravating factors warrant concluding that, but for the

43 	No. 20040262
prosecutor’s misconduct, there is a reasonable likelihood that
the penalty phase outcome would have been different. 	While the
prosecutor may have misstated the burden of proof, the trial
court correctly instructed the jury that it must unanimously find
that “the prosecution has proven all elements of [the aggravating
crime] beyond a reasonable doubt.” 	Given the victims’
testimonies describing the horrendous nature of the crimes in
this case and identifying Taylor as one of the perpetrators, we
do not think that the prosecutor’s comments influenced the jury’s
decision.
¶117 We therefore conclude that the court did not commit
plain error by allowing the prosecutor to make the challenged
statements and that appellate counsel did not miss an obvious
claim on appeal.
IX. 	TAYLOR’S DEATH SENTENCE IS NOT UNCONSTITUTIONAL
¶118 Taylor claims his appellate counsel was ineffective for
failing to raise various challenges to the death penalty. 	He
argues that both trial and appellate counsel were ineffective
because they did not argue that (1) the death penalty statute
under which Taylor was sentenced in 1991 violated the due process
and equal protection clauses under both the state and federal
constitutions because it failed to narrow the class of death-
eligible defendants, and (2) Taylor’s death sentence is cruel and
unusual punishment given that many other countries have abolished
the death penalty. 	Taylor also argues, for the first time in
this appeal, that his death sentence is unconstitutional because
his trial counsel had a conflict of interest due to his
simultaneous representation of two death penalty defendants.
A. 	Appellate Counsel Was Not Ineffective for
Failing to Challenge the Death Penalty
¶119 Appellate counsel’s failure to challenge the
constitutionality of the 1991 death penalty statute or the
constitutionality of the death penalty itself did not constitute
ineffective assistance of counsel. 	To effectively represent a
defendant, appellate counsel need not “raise every nonfrivolous
issue on appeal.” 	Carter III, 2001 UT 96, ¶ 48, 44 P.3d 626.
Rather, counsel may use his or her professional judgment and
decide to raise only those claims most likely to succeed. 	See
id. (noting that “counsel frequently will ‘winnow out’ weaker
claims in order to focus effectively on those more likely to
prevail” (citation omitted)). 	This is true even in capital
cases. 	See id. 	Accordingly, we do not think that an appellate
attorney must always challenge the constitutionality of the death

5 This author still subscribes to the view expressed in her
dissent in State v. Young, which argued that the death penalty
statute is unconstitutional because it fails to narrow the class
of death-eligible defendants. 	853 P.2d at 397-403 (Durham, J.,
dissenting).
No. 20040262 	44
penalty in order to effectively represent his or her client.
This does not foreclose the possibility, however, that there are
cases in which the failure to raise such a challenge would amount
to ineffective assistance.
¶120 We do not think that this is one of those cases. 	In
1993, two years after Taylor had been sentenced, this court
issued State v. Young, 853 P.2d 327 (Utah 1993). 	In that case, a
majority of the court upheld the state and federal
constitutionality of Utah’s death penalty statutes, id. at 337-
38, thus rejecting the defendant’s claims that, among other
things, Utah’s death penalty scheme “constitute[d] cruel and
unusual punishment” and failed to “narrow the class of offenders
eligible for the death penalty,” id. at 336. 	Considering the
fact that Young was issued only three years before Taylor filed
his first appeal, we do not think that appellate counsel was
ineffective for failing to raise the constitutionality of the
death penalty on appeal because he could reasonably have
concluded that such a claim would not succeed.
¶121 We likewise decline to address the merits of Taylor’s
claims that the death penalty is unconstitutional because it
violates the due process and equal protection clauses and because
it is cruel and unusual punishment. 	We have addressed the
constitutionality of the death penalty on numerous occasions,
each time concluding that the death penalty is constitutional.
See, e.g., State v. Kell, 2002 UT 106, ¶¶ 58-59, 61 P.3d 1019
(declining to address the defendant’s challenge that the death
penalty statute was unconstitutional because it failed to narrow
the class of death eligible defendants because the issue had been
addressed many times before); State v. Lafferty, 2001 UT 19,
¶¶ 113-41, 20 P.3d 342 (concluding that the death penalty statute
is constitutional); State v. Lovell, 1999 UT 40, ¶ 38, 984 P.2d
382 (recognizing that Utah’s death penalty scheme had been upheld
by both this court and the Tenth Circuit Court of Appeals and
therefore declining to readdress its constitutionality); State v.
Young, 853 P.2d 327, 336-38 (Utah 1993) (upholding Utah’s death
penalty statute); 5 State v. Holland, 777 P.2d 1019, 1028 (Utah
1989) (holding that Utah’s death penalty statute narrowed the
numbers of those who may be sentenced to death in accordance with
the Eighth Amendment to the United States Constitution). 	Taylor
has not presented any novel theory in this appeal that persuades

45 	No. 20040262
us that we should readdress the constitutionality of either the
death penalty or Utah’s sentencing scheme.
B. 	Taylor’s Constitutional Right to Counsel Was Not
Violated Because He Has Not Shown That
Trial Counsel Had a Conflict of Interest
¶122 Finally, Taylor argues that he was denied his
constitutional right to effective assistance of counsel because
his trial counsel had a conflict of interest. 	Specifically,
Taylor claims that his trial counsel had a conflict of interest
because his trial counsel was simultaneously representing Taylor
and James Holland, the death row inmate who testified as part of
trial counsel’s mitigation strategy in Taylor’s case. 	Taylor
does not argue that his appellate counsel was ineffective for
failing to raise this claim, but rather asks this court to
address it pursuant to the unusual circumstances test. 	Under the
unusual circumstances test, we will address claims that are
procedurally barred if the petitioner can show “that there was an
obvious injustice or a substantial and prejudicial denial of a
constitutional right.” 	Carter III, 2001 UT 96, ¶ 15 (internal
quotation marks omitted). 	Taylor has not made that showing here.
¶123 The right to effective assistance of counsel includes
the “right to counsel free from conflicts of interest.” 	Taylor
I, 947 P.2d 681, 686 (Utah 1997) (internal quotation marks
omitted). 	Where counsel’s alleged conflicts were never raised at
trial, a defendant who claims his counsel had a conflict of
interest must show that “an actual conflict of interest adversely
affected his lawyer’s performance.” 	Id. (internal quotation
marks omitted); see also United States v. Alvarez, 137 F.3d 1249,
1251 (10th Cir. 1998).
¶124 “An actual conflict of interest results if counsel was
forced to make choices advancing other interests to the detriment
of his client.” 	Alvarez, 137 F.3d at 1252. 	While we have stated
that “[i]n order to establish an actual conflict, [a defendant]
must demonstrate . . . that the defense attorney was required to
make a choice advancing his own interests to the detriment of his
client’s interests,” Taylor I, 947 P.2d at 686 (internal
quotation marks omitted), we have also found a conflict of
interest where defense counsel took a position “that was directly
contrary to [the defendant’s] interest,” State v. Holland, 876
P.2d 357, 360 (Utah 1994). 	For example, in Holland, this court
disqualified Holland’s trial counsel, who also was trial counsel
in this case, from representing Holland because trial counsel
stopped advocating for Holland when he called Holland to the

No. 20040262 	46
stand at Taylor’s trial to show that Holland was “a prime
candidate for the death penalty.” 	Id.
¶125 Despite trial counsel’s conflict-based disqualification
in the Holland case, Taylor has not pointed us to any evidence
suggesting that trial counsel ever acted to advance interests
other than Taylor’s. 	We agree that trial counsel improperly
called Holland to testify at Taylor’s sentencing hearing.
Nevertheless, this poor decision does not show that trial counsel
was acting to further any interests other than Taylor’s. 	He most
certainly was not acting to further Holland’s interests.
Moreover, trial counsel’s simultaneous representation of two
capital defendants does not, on its own, create a conflict of
interest.
¶126 Taylor relies on his other points of appeal to further
support his argument that trial counsel had a conflict of
interest. 	However, Taylor never identifies the ulterior interest
he believes trial counsel was serving or connects the alleged
deficiencies to anything other than poor lawyering. 	We therefore
decline to hold that trial counsel had an actual conflict that
impaired his representation of Taylor. 	Taylor’s claim fails
under the unusual circumstances test.
CONCLUSION
¶127 We conclude that appellate counsel did not provide
ineffective assistance by missing any obvious claims that likely
would have resulted in a different outcome on appeal. 	We
likewise conclude that no substantial injustice has been
committed. 	We therefore affirm the post-conviction court’s
decision to grant summary judgment to the State.
---
¶128 Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.