District Court, Cedar City Department The Honorable G.
Michael Westfall No. 131500082
Kent Morgan, Attorney for Appellant
D. Reyes and Christopher D. Ballard, Attorneys for Appellee
David N. Mortensen authored this Opinion, in which Judges
Gregory K. Orme and Jill M. Pohlman concurred.
Seeking a reaction from his friend sitting nearby, Defendant
Thad Douglas Robertson pulled out a concealed revolver and
pointed it at his girlfriend's head. Then he pulled the
trigger. The revolver fired. He later claimed that the gun,
which he had owned for nearly three decades,
"startled" him by going off. Defendant then turned
the firearm on his friend and shot him. Twice. Both the
girlfriend and the friend died. Appealing from his
convictions for aggravated murder, Defendant claims that the
trial court and his defense counsel made missteps relating to
the jury voir dire process, that the evidence was
insufficient to support his convictions, and that he was
deprived of the effective assistance of counsel at trial. We
reject his claims and affirm his convictions.
Defendant and his Girlfriend spent Valentine's Day at her
house, where Defendant was living. The next morning, they
awoke and smoked methamphetamine before Defendant left for a
time. When he returned, Friend-whom Defendant had not seen in
six months-was at the house. Friend asked, "Can I invite
you in?, " which "upset [Defendant] greatly"
because, "[w]ell, wouldn't it upset you if a guy
showed up and invited you into your own home?" So
Defendant again left the house.
When he returned to the home the second time that day,
Defendant could hear Girlfriend and Friend talking in the
living room. He claimed that they got quiet as soon as he
opened the door, which further irritated Defendant. His
response was to go to his bedroom and retrieve his revolver,
concealing it in the waistband of his pants.
Returning to the living room, Defendant, assuming "there
was some sort of an affair going on, " asked Friend how
long it "had been going on." According to
Defendant, Girlfriend then said, "Oh, no, [Friend]. He
knows that we're sleeping together." But Defendant
said Girlfriend was "probably just being sarcastic,
" as she "was very sarcastic." He nevertheless
pulled the gun out and pointed it at Girlfriend's head,
looking at Friend to see his reaction. Then Defendant pulled
the trigger, shooting Girlfriend in the head.
Defendant later asserted that he believed the cylinder under
the hammer in the revolver was empty, so he was
"startled" when the gun went off.
After shooting Girlfriend, Defendant looked at Friend, who
had "started to come up out of his seat." Defendant
"turned the gun on him, fearing that [Friend] was going
to come after [Defendant]" and shot him, causing Friend
to stumble and fall. When Friend "started to try and get
up again, " Defendant shot him a second time, reasoning
again, "I thought [Friend] was going to come after
According to Defendant, he then went to Girlfriend and
touched her head, covering his hand with blood. He originally
thought she was dead, but upon moving closer, he noticed that
she was still breathing. Defendant later claimed that he
kissed Girlfriend on the forehead before asking, "[W]hat
have I done?"
Defendant claimed he then called his daughter on the phone,
telling her he was calling to say goodbye and to ask her to
manage his finances because he was going to commit suicide.
He explained that Girlfriend had been shot and mentioned that
"somebody else possibly could have been shot."
Defendant ended the call by saying that Girlfriend was making
noise so he had to go. Daughter testified that throughout the
phone call, Defendant was calm. Aside from the content of the
conversation, it seemed "like a normal phone call."
Daughter called the police to report that her father was
suicidal. Police responded to Girlfriend's house, where
they saw Defendant pacing in front of the house, smoking a
cigarette. He initially told police that when he entered the
house, he found that two people had been shot. He claimed
that he did not know the man who had been shot but explained
that his girlfriend had been shot and had a handgun; he gave
police the impression that Girlfriend was the shooter and was
The police wanted to provide aid to the injured parties but
were faced with Defendant's claim that the shooter was
still inside the house with a gun. They thus determined that
it was a "high risk" situation and directed medical
personnel to delay entering the home. A SWAT team was called
Meanwhile, police questioned Defendant, trying to better
understand the situation inside the house. Defendant
"was a bit hesitant" to provide information and was
"elusive" in his answers. When police asked
Defendant why he had not called 911 when he first discovered
Girlfriend's injuries, he claimed, "She raised up
the gun and I thought she might shoot me, so I went back
[into] the bedroom." He further claimed that Girlfriend
was suicidal and had earlier taken a large quantity of pills.
Police went on to question Defendant about his conversation
with Daughter, asking why he had told her that he had shot
two people. He said he did not remember saying that to
Daughter and, in fact, did not know why he would have said
The SWAT team, followed by medical personnel, eventually
entered the house. They observed Girlfriend sitting with her
head against the couch, holding her hands by her face, her
eyes swollen shut. Her hands were "shaking
uncontrollably" and she kept repeating, "Let me
die. Leave me alone. Let me die alone." Defendant's
revolver was in her lap. Girlfriend was transported to the
hospital, where she died four days later. Friend was dead
when medical personnel entered the house.
Subsequent police investigation uncovered that Defendant had
not called Daughter immediately after shooting Girlfriend and
Friend. Instead, he had left the scene, visited his
mother's house, then called Daughter when he returned to
Girlfriend's house. Defendant had left a handwritten note
at his mother's house, giving his mother power of
attorney and directing the distribution of his belongings to
his children. Defendant eventually admitted to police that he
wrote the note after shooting Girlfriend and Friend.
The State charged Defendant with, among other charges,
aggravated murder for the deaths of Friend and Girlfriend. At
trial, a firearms expert testified that it is easy to tell
which cylinders in Defendant's revolver are loaded
because the rim of the cartridge protrudes slightly out of
and above the cylinder. Defendant had owned the revolver used
in the shootings for twenty-eight years.
The case was tried to an eight-member jury. Voir dire was
conducted in two sessions: one in court and one in-chambers.
While Defendant was present during the first round of voir
dire, he elected not to be present during the latter part,
which took place in-chambers. Before the in-chambers voir
dire began, defense counsel noted on the record that
Defendant agreed not to be present, and the trial court
advised Defendant that he had a right to be present during
jury selection. Defendant told the court that he trusted his
attorney, and the court found that Defendant "knowingly
and voluntarily waived his right to be present at voir
The State did not seek the death penalty, having filed the
charges as noncapital first degree felonies. The jury
convicted Defendant as charged, finding him guilty of two
counts of aggravated murder, one count of possession of a
controlled substance in a drug-free zone, one count of
possession of a firearm by a restricted person, and one count
of possession of drug paraphernalia in a drug-free zone. The
trial court sentenced Defendant to two consecutive sentences
of life without parole for the aggravated murders and