State v. Lee

• Decision Date: 13 January 2006
• Docket Number: No. 20040560.,20040560.
• Parties: STATE of Utah, Plaintiff and Appellee, v. James Earl LEE, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1179

128 P.3d 1179

2006 UT 5

STATE of Utah, Plaintiff and Appellee, v. James Earl LEE, Defendant and Appellant.

No. 20040560.

Supreme Court of Utah.

January 13, 2006.

Mark L. Shurtleff, Att'y Gen., Jeffrey S. Gray, Asst. Att'y Gen., Salt Lake City, and G. Mark Thomas, Vernal, for plaintiff.

Bryan Sidwell, Vernal, for defendant.

PARRISH, Justice:

¶ 1 Defendant James Earl Lee appeals his convictions for one count of aggravated kidnaping and two counts of aggravated assault. He argues that the trial court erred in failing to remove two potential jurors for cause during voir dire and in failing to merge his aggravated kidnaping conviction with one of his aggravated assault convictions. He also argues that his attorney rendered ineffective assistance by failing to object to the composition of the jury panel and by failing to seek merger of the convictions. We disagree and affirm.

BACKGROUND

¶ 2 When reviewing a challenge to a criminal conviction, "[w]e recite the facts from the record . . . in the light most favorable to the jury's verdict." State v. Geukgeuzian, 2004 UT 16, ¶ 2, 86 P.3d 742 (alteration in original) (internal quotation marks omitted).

¶ 3 In the early morning hours of July 5, 2003, eighteen-year-olds Jennifer Hardinger and Judy Hullinger were walking along Highway 40 in Vernal en route to a friend's house. As they walked, they encountered Lee, who approached them, complimented them on their respective appearances, and invited them to "party" with him. When the girls declined his invitation, Lee offered to purchase alcohol for them. The girls again declined, and Hardinger walked away.

¶ 4 Hullinger was about to do the same when Lee grabbed her arm, complimented her on her body, and fondled her breasts. He then put his hand down the front of Hullinger's pants. In response, Hullinger kicked Lee, turned, and ran to Hardinger. The two girls initially ran. Then, thinking that their encounter with Lee was over, slowed their pace to a walk. Lee approached Hullinger unnoticed from behind, grabbed her hair, and slammed her to the pavement. He proceeded to drag her by the hair across Highway 40 to an alley separating two buildings, where he kicked her repeatedly in the head, rolled her over, pulled down her pants, and got on top of her.

¶ 5 Hardinger intervened, pulling Lee off Hullinger and then attempting to drag Hullinger to the highway. In response, Lee grabbed Hardinger and repeatedly demanded that she pull down her pants. Hardinger told Lee that she would, presumably as a ruse to trick him into relenting and to buy some time. Hardinger then attempted to flee, but Lee caught her, slammed her to the ground, and kicked her several times in the face. Lee then desisted, stating, "I don't want to rape you girls anyway. You guys tell the police, I'll kill you." Finally, he left.

¶ 6 Because Lee was wearing steel-toed boots on the night in question, both girls sustained severe injuries as a result of Lee's beatings. Lee was subsequently arrested and charged with two counts of aggravated assault and two counts of aggravated kidnaping. After a preliminary hearing and bind-over, the case went to trial.

¶ 7 During voir dire, the trial judge identified the participants and witnesses that would appear during the course of the trial and asked whether any of the potential jurors had a close personal relationship with any of them. Juror 17 disclosed that she had previously been prosecuted by the State prosecutor. She also stated that she knew both Hardinger and one of the police officers who had investigated the assault and who was scheduled to testify. When asked whether she would favor the testimony of those individuals, she responded that she would be fair. Later, in chambers, it was disclosed that Lee's attorney represented Juror 17's grandmother in business dealings. The judge asked Juror 17 whether her prior dealings with the State prosecutor and Lee's attorney would prevent her from being fair, and she responded that they would not. Juror 17 also stated that she had not talked to Hardinger "in about four or five weeks," that she "went to school with [Hardinger] sometimes," that Hardinger occasionally came "over to the house that [Juror 17] part[ied] at sometimes," but that her relationship with Hardinger would not compromise her impartiality. Both the State prosecutor and Lee's attorney passed Juror 17 for cause, but Lee's attorney eventually struck her from the jury through use of a peremptory challenge.

¶ 8 Also during voir dire, the trial judge asked if any potential jurors, their close friends, or members of their families had been involved with law enforcement. Juror 18 stated that she had "a niece by marriage that is married to a detective." When the trial judge asked Juror 18 whether that relationship would "cause [her] to be giving more weight to the police side of the table," she responded that it would not. Later, when asked whether she had a close relationship with any prospective witnesses, Juror 18 clarified her previous answer, stating that the detective to whom her niece was married had participated in investigating the assault and was scheduled to testify. The trial judge asked her how often she had contact with the detective, and Juror 18 responded, "Not very often." The trial judge then asked Juror 18 whether she would give the detective's testimony more weight, to which she responded that she would be fair.

¶ 9 At the conclusion of voir dire, the trial judge asked both parties whether the remaining potential jurors, which included Juror 18, constituted "the jury as selected." Lee's attorney responded, "It is, Your Honor."

¶ 10 This jury convicted Lee of two counts of aggravated assault and one count of aggravated kidnaping.¹ The trial court did not merge Lee's aggravated kidnaping conviction into his corresponding aggravated assault conviction, and Lee's attorney made no objection.

¶ 11 Lee appealed his convictions to the Utah Court of Appeals. The court of appeals subsequently transferred the appeal to this court because it involved a first degree felony conviction. See Utah Code Ann. § 78-2-2(3)(i) (2002). Pursuant to our pourover authority, we transferred the case back to the court of appeals. See id. § 78-2-2(4). We later rescinded that transfer so that we could hear Lee's appeal concurrently with State v. King, 2006 UT 3, ___ P.3d ___, and State v. Winfield, 2006 UT 4, 128 P.3d 1171, which, like Lee's appeal, raise the question of the applicable standard of review where challenges to jury composition are raised for the first time on appeal. We have jurisdiction pursuant to Utah Code section 78-2-2(3)(i).

ANALYSIS

¶ 12 On appeal, Lee asserts two principal claims, each of which involves a related ineffective assistance of counsel claim. First, Lee argues that the trial court erred in failing to remove Jurors 17 and 18 for cause from the jury panel. Alternatively, he argues that his attorney rendered ineffective assistance by failing to ask that the trial court strike those jurors for cause. Second, Lee argues that the trial court erred in failing to merge his aggravated kidnaping conviction into his corresponding aggravated assault conviction. Alternatively, he argues that his attorney rendered ineffective assistance in failing to request such a merger. We address each argument in turn.

I. THE TRIAL COURT'S FAILURE TO REMOVE JURORS 17 AND 18 FOR CAUSE

¶ 13 We first address Lee's claim that the trial court erred by failing to remove Jurors 17 and 18 for cause, and Lee's alternative claim that his attorney provided ineffective assistance by failing to raise for-cause challenges against those jurors.

A. Did the Trial Court Err by Failing to Remove Jurors 17 and 18 For Cause?

¶ 14 Although Lee now argues that the trial court erred in failing to remove Jurors 17 and 18 for cause, Lee's counsel did not raise any objection to Jurors 17 and 18 in the trial court. When an appellant raises a claim on appeal that was not preserved in the trial court, we ordinarily review that claim only for plain error. Here, however, Lee contends that we should review the trial court's actions for an abuse of discretion. In support of that contention, he cites State v. King, 2004 UT App 210, 95 P.3d 282, in which the court of appeals applied an abuse of discretion standard to a challenge arising from voir dire even though the appellant failed to object to the jury panel in the trial court. Id. ¶¶ 10, 26.

¶ 15 Lee's reliance on the court of appeals' decision in King is to no avail in light of our recent consideration of King on certiorari review. In State v. King, 2006 UT 3, ¶ 12, ___ P.3d ___, we reversed the court of appeals, holding that the plain error standard of review, not the abuse of discretion standard, applies when challenges to the jury's composition are raised for the first time on appeal.

¶ 16 Unfortunately for Lee, however, he is not in a position to obtain even plain error review because his counsel invited the alleged error that he now raises on appeal. Under our doctrine of invited error, Lee is simply not entitled to any appellate review.

¶ 17 In State v. Winfield, 2006 UT 4, 128 P.3d 1171, which was argued on the same day as Lee's appeal, we held that the doctrine of invited error precluded Winfield from contesting on appeal the composition of the jury that convicted him because he had affirmatively stated his acceptance of the jury in the trial court. Id. ¶ 18. In other words, the doctrine of invited error—not abuse of discretion or plain error—applies to claims of juror bias made for the first time on appeal in those cases where the appellant affirmatively proclaims the acceptability of the jury in the trial court. See id. ¶ 16.

¶ 18 If a party is dissatisfied with the thoroughness of voir dire or has concerns arising from a potential juror's responses to voir dire, that party may seek to remove the potential juror, propose additional questions, or ask the court...