Depew v. Sullivan

Decision Date22 May 2003
Docket NumberNo. 20010242-CA.,20010242-CA.
Citation71 P.3d 601,2003 UT App 152
PartiesHuey L. DEPEW, Plaintiff and Appellant, v. Denton C. SULLIVAN, Defendant and Appellee.
CourtUtah Court of Appeals

Aaron J. Prisbrey, St. George, for Appellant.

Paul H. Matthews, Paul H. Matthews & Associates, PC, Salt Lake City, for Appellee.

Before BILLINGS, Associate Presiding Judge, and GREENWOOD and ORME, JJ.


ORME, Judge:

¶ 1 Plaintiff Huey Depew sued defendant Denton Sullivan to recover for injuries he sustained when their vehicles collided in a traffic accident. The jury returned a verdict for Defendant, and Plaintiff appealed. Because we hold that the trial court erred in restricting the scope of voir dire during jury selection because of religious considerations, we reverse and remand for a new trial.


¶ 2 Plaintiff and Defendant were involved in an accident in Washington County. Plaintiff was driving his motorcycle down a slightly sloped street when Defendant, not seeing Plaintiff, turned his truck left in front of Plaintiff. Plaintiff hit his brakes and skidded approximately forty-one feet. He then jumped off his motorcycle, which was still moving, and landed about twenty feet in front of Defendant's truck. The motorcycle continued to slide on its side and collided with the truck near the truck's rear tire. The motorcycle then slid an additional forty-eight feet. Plaintiff injured his arm as a result of the accident, and he sued Defendant to recover for his injuries and lost wages.

¶ 3 At one point during discovery, Defendant requested from Plaintiff medical bills, tax returns, and other documents and information. Ten months later, having not received some of the documents and information, Defendant filed a motion to compel discovery, which the trial court eventually granted. When Plaintiff still failed to produce the documents, the court awarded sanctions to Defendant, ordering Plaintiff and his counsel to pay Defendant the attorney fees incurred in bringing the motion. ¶ 4 Meanwhile, Defendant departed the state to serve a two-year term as a missionary for the Church of Jesus Christ of Latter-day Saints (the Church) in Pennsylvania. Consequently, Defendant was absent from trial. However, the attorneys deposed him prior to his departure, and Defendant's attorney submitted into evidence a videotaped copy of the deposition.

¶ 5 During jury selection proceedings, Plaintiff's attorney informed the judge: "[O]ne of the issues has to do with the fact [Defendant] is on an LDS mission [i.e., a mission for the Church] and I wanted to ask the jury some questions as to whether they do have children on missions." Categorizing this proposed question as one about religious affiliation, the judge denied the request, stating that "religious affiliation has nothing to do with jury service." The judge put to the venire panel the following substitute question: "Would the fact that ... the defendant[] is on a religious mission at the present time give you any problem in applying the facts in the law as you find it from the evidence in this case?" When all of the prospective jurors answered in the negative, the judge moved on to the next question.

¶ 6 During trial, Defendant proposed to call Officer Stacy Richan to testify as an expert witness regarding Plaintiff's precollision speed. Officer Richan was the police officer who had investigated the collision on the day it occurred, at which time he measured Plaintiff's motorcycle skid mark to be forty-one feet long. He had extensive training and experience in accident reconstruction, and although he had not been trained in motorcycle accident reconstruction at the time of the collision, he had since received some training in that area. He was prepared to testify that based on the length of the skid mark, Plaintiff must have been traveling between the speeds of 40.93 mph and 46.08 mph just prior to the collision.1 Plaintiff objected to the testimony, arguing that Officer Richan's calculation was based upon the unverifiable assumption that both motorcycle wheels—and not just one wheel—had skidded the entire forty-one feet. The trial court overruled Plaintiff's objection and allowed Officer Richan to testify.

¶ 7 At the conclusion of trial, Plaintiff moved for a directed verdict against Defendant on the issue of negligence, which the trial court denied. The jury deliberated and then returned a verdict in favor of Defendant,2 placing one hundred percent of the fault for the collision on Plaintiff and no fault on Defendant. The trial court entered judgment in Defendant's favor and ordered Plaintiff to reimburse Defendant "all taxable costs pursuant to Rule 54[ (d)] of the Utah Rules of Civil Procedure." Defendant subsequently submitted a memorandum of costs, which stated that his total costs—all related to depositions used at trial—amounted to $3,085.05. The trial court ordered Plaintiff to pay that amount to Defendant.

¶ 8 Plaintiff moved for a new trial on the ground that "[t]here is clearly insufficient evidence to justify the verdict and finding of no fault on the part of [Defendant]." The trial court denied the motion.

¶ 9 Plaintiff now appeals and claims that the trial court erred when it imposed discovery sanctions against Plaintiff's counsel, denied Plaintiff's request at voir dire to ask prospective jurors questions about their close familial associations with missionaries, allowed Officer Richan to testify at trial as an expert witness, awarded Defendant costs for depositions, and refused either to direct a verdict against Defendant or to grant a new trial. We reverse the judgment against Plaintiff and remand for a new trial.

A. Standard of Review and General Principles Regarding Voir Dire

¶ 10 "We review challenges to the trial court's management of jury voir dire under an abuse of discretion standard. Generally, the trial court is afforded broad discretion in conducting voir dire, `but that discretion must be exercised in favor of allowing discovery of biases or prejudice in prospective jurors.'" Barrett v. Peterson, 868 P.2d 96, 98 (Utah Ct.App.1993) (quoting State v. Hall, 797 P.2d 470, 472 (Utah Ct.App.),cert. denied, 804 P.2d 1232 (Utah 1990)) (other citations omitted).

¶ 11 Due to the strong interest in enabling parties "to elicit necessary information for ferreting out bias," State v. Saunders, 1999 UT 59,¶ 34, 992 P.2d 951,3 a trial court's

discretion is most broad when it is exercised with respect to questions that have no apparent link to any potential bias. However, the trial judge's discretion narrows to the extent that questions do have some possible link to possible bias, and when proposed voir dire questions go directly to the existence of an actual bias, that discretion disappears. The trial court must allow such inquiries.

Id. at ¶ 43.

¶ 12 The Utah Supreme Court has instructed "trial judges to take care to adequately and completely probe jurors on all possible issues of bias." State v. James, 819 P.2d 781, 798 (Utah 1991). The purpose for this probing is to facilitate "both the detection of actual bias and the collection of data to permit informed exercise of the peremptory challenge." State v. Taylor, 664 P.2d 439, 447 (Utah 1983) (citations omitted). "All that is necessary for a voir dire question to be appropriate is that it allow `[a party] to exercise his peremptory challenges more intelligently.'" State v. Worthen, 765 P.2d 839, 845 (Utah 1988) (quoting State v. Ball, 685 P.2d 1055, 1060 (Utah 1984)). Accord Saunders, 1999 UT 59

at ¶ 34, 992 P.2d 951.

B. Voir Dire Inquiry Regarding Religion

¶ 13 Despite the rather broad permissible scope of voir dire inquiry, limitations exist. The Utah Constitution provides that no person "shall ... be incompetent as a ... juror on account of religious belief or the absence thereof." Utah Const. art. I, § 4. See Utah Code Ann. § 78-46-3 (2002) ("A citizen shall not be excluded or exempt from jury service on account of ... religion[.]"). Accordingly, absent the possibility of actual bias stemming from religious beliefs, it is ordinarily inappropriate to inquire into venire members' religious beliefs during voir dire. See Hornsby v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints, 758 P.2d 929, 933 n. 2 (Utah Ct.App.)

(stating that "[t]he religious beliefs of the prospective jurors are not directly related to the subject matter of this suit, and hence could not properly be examined during voir dire"), cert. denied, 773 P.2d 45 (Utah 1988). See also Yarborough v. United States, 230 F.2d 56, 63 (4th Cir.) (holding that trial court properly refused to ask questions about religious affiliation when "[n]o matter of any religious significance whatever was involved in the case" and there was "nothing to show that [the appellant] belonged to any religious sect"), cert. denied, 351 U.S. 969, 76 S.Ct. 1034, 100 L.Ed. 1487 (1956); United States v. Daily, 139 F.2d 7, 9 (7th Cir.1943) ("We agree with the trial court that the defendant's religion and whether or not he was a minister regularly ordained by his creed or sect were not a matter that was in issue before the court, and it was not proper to inquire of the venire about its views as to an issue that was foreign to the issues for trial."). Cf. State v. Ball, 685 P.2d 1055, 1060 (Utah 1984) (approving a question about religious beliefs because such beliefs were related to the case but prohibiting attorneys at voir dire from "conduct[ing] an inquisition into the private beliefs and experiences of a venireman").

1. Plaintiff's Proposed Question Was Not About Religion

¶ 14 The central issue in this case is whether Plaintiff's proposed question falls within the purview of the constitutional restrictions on voir dire inquiries regarding religion. We hold that it does not because it was not a question about the venire members' religious affiliations or beliefs.

¶ 15 Plaintiff's counsel proposed to ask merely "w...

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11 cases
  • State v. Burke
    • United States
    • Utah Court of Appeals
    • May 26, 2011
    ...jurors' religious affiliation or activities may occasionally be permissible during voir dire where clearly relevant, see Depew v. Sullivan, 2003 UT App 152, ¶¶ 19–22, 71 P.3d 601; Hornsby v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints, 758 P.2d 929......
  • Mulder v. State
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    • Utah Court of Appeals
    • October 6, 2016
    ...dire," but only where religion is "clearly relevant." State v. Burke , 2011 UT App 168, ¶ 74, 256 P.3d 1102 ; see also, e.g. , Depew v. Sullivan , 2003 UT App 152, ¶ 23, 71 P.3d 601 (concluding that limited religious inquiry would have been appropriate during voir dire where the defendant w......
  • PC Crane Serv., LLC v. McQueen Masonry, Inc.
    • United States
    • Utah Court of Appeals
    • March 1, 2012
    ...sanctions if a party fails to respond to interrogatories or requests for inspection of documents, see id. R. 37(d); see also Depew v. Sullivan, 2003 UT App 152, ¶ 35, 71 P.3d 601 (requiring sanctions for a violation of rule 37(d) “ ‘unless the court finds that the [discovery violation] was ......
  • State v. Flores
    • United States
    • Utah Court of Appeals
    • April 16, 2015
    ...into religion may be appropriate when the case presents “the possibility of actual bias stemming from religious beliefs.” Depew v. Sullivan, 2003 UT App 152, ¶ 13, 71 P.3d 601 ; see also, e.g., State v. Ball, 685 P.2d 1055, 1060 (Utah 1984) (holding that asking a potential juror whether “hi......
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1 books & journal articles
  • Utah Standards of Appellate Review - Third Edition
    • United States
    • Utah State Bar Utah Bar Journal No. 23-6, December 2010
    • Invalid date
    ...standard of review. See Welsh v. Hosp. Corp. of Utah, 2010 UT App 171, ¶ 9, 235 P.3d 791; Depew v. Sullivan, 2003 UT App 152, ¶ 35, 71 P.3d 601. An abuse of discretion "may be demonstrated by showing that the district court relied on 'an erroneous conclusion of law' or that there was 'no ev......

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