State v. Baker

• Decision Date: 02 November 1994
• Docket Number: No. 910650-CA,910650-CA
• Citation: 884 P.2d 1280
• Parties: STATE of Utah, Plaintiff and Appellee, v. Mark Joseph BAKER, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1280

884 P.2d 1280

STATE of Utah, Plaintiff and Appellee, v. Mark Joseph BAKER, Defendant and Appellant.

No. 910650-CA.

Court of Appeals of Utah.

Nov. 2, 1994.

Robert K. Heineman, Salt Lake Legal Defender Ass'n, Salt Lake City, for appellant.

Jan Graham, State Atty. Gen., J. Kevin Murphy, Asst. Atty. Gen., Salt Lake City, for appellee.

Before BILLINGS, P.J., and JACKSON and ORME, JJ.

OPINION

BILLINGS, Presiding Judge:

FACTS

Defendant Mark Baker was charged with raping and sodomizing his stepdaughter, H.H., from July through October, 1987. She was five to six years old at the time.

At trial, in response to the court's inquiry during voir dire, Juror No. 19 related that his sister had been raped and sodomized when she was eight years old. He then indicated that he would be unable to remain impartial to evidence involving sexual abuse of a child. Upon being asked essentially the same question, he withdrew his admission of bias. Defendant moved to remove Juror No. 19 for cause and the motion was denied.

The jury found defendant guilty of rape of a child and sodomy on a child, both first-degree felony offenses, and he was sentenced to two concurrent fifteen-year-to-life terms. On appeal, defendant claims, inter alia, he is entitled to reversal because he was tried by a biased jury. We agree defendant's jury was biased and reverse on that basis. ¹

I. JURY BIAS

The right to trial by an impartial jury is guaranteed in Article I, section 12 of the Utah Constitution. Whether to dismiss a prospective juror for cause is within the sound discretion of the trial court. "When reviewing such a ruling, we reverse only if the trial court has abused its discretion." State v. Woolley, 810 P.2d 440, 442 (Utah App.1991). However, the exercise of the trial court's discretion in selecting a fair and impartial jury must be viewed "in light of the fact that it is a simple matter to obviate any problem of bias simply by excusing the prospective juror and selecting another." Jenkins v. Parrish, 627 P.2d 533, 536 (Utah 1981).

Rule 18(e)(14) of the Utah Code of Criminal Procedure permits for-cause challenges to prospective jurors when "a state of mind exists on the part of the juror with reference to the cause, or to either party, which will prevent him from acting impartially and without prejudice to the substantial rights of the party challenging." Utah R.Crim.P. 18(e)(14). Whether a prospective juror's state of mind mandates that the court dismiss the juror for cause depends on whether that juror has formed " 'strong and deep impressions which will close the mind against the testimony that may be offered in opposition to them; which will combat that testimony and resist its force.' " State v. Hewitt, 689 P.2d 22, 25 (Utah 1984) (quoting State v. Bailey, 605 P.2d 765, 767 (Utah 1980)).

We recently outlined the procedure trial judges must employ to identify partial jurors in State v. Woolley. In the first instance, the trial judge must conduct voir dire to probe for potential bias. Woolley, 810 P.2d at 444. If probing reveals potential bias, a trial judge must conduct rehabilitative inquiry until the inference of bias is rebutted. Id. "The level of investigation necessary once voir dire reveals potential juror bias will vary from case to case and is necessarily dependent on the juror's responses to the questions asked." Id. at 445.

In the instant case, the trial judge probed the prospective jurors for potential bias by asking whether they personally, or anyone within their immediate family, had been the victim of a sexual crime. In response to the judge's inquiry, Juror No. 19 indicated that his sister had been raped and sodomized when she was eight years old. The trial judge then asked Juror No. 19, and the two other jurors who had responded affirmatively to the judge's initial probe, whether they could be "fair and impartial and set those things aside and give the State and the defendant a fair and impartial trial." All three jurors indicated they could not. ²

Juror No. 19 affirmatively indicated his inability to remain impartial in light of his sister's experience as a victim of a sexual crime. He thus demonstrated actual bias rather than merely acknowledging circumstances from which the court could infer bias. Cf. Woolley, 810 P.2d at 441-42, 444 (finding inference of bias arose when juror indicated he had been victim of similar crime).

Utah law requires trial courts to expend significant effort in rehabilitating a potential juror to whom even an inference of bias has attached. See, e.g., State v. Julian, 771 P.2d 1061, 1065-66 (Utah 1989) (prospective juror who indicated predisposition to believe victim's testimony successfully rehabilitated by twenty questions); State v. Jonas, 793 P.2d 902, 905-07 (Utah App.1990) (prospective juror who had been victim of similar crime successfully rehabilitated by ten followup questions); Salt Lake City v. Tuero, 745 P.2d 1281, 1283 (Utah App.1987) ("significant efforts" made to determine whether prospective juror whose wife was victim of similar crime could remain unbiased). When a potential juror expressly voices an inability to impartially evaluate the evidence, the trial court has an even greater rehabilitative burden. See State v. Jones, 734 P.2d 473, 475 (Utah 1987); State v. Hewitt, 689 P.2d 22, 26 (Utah 1984); State v. Brooks, 631 P.2d 878, 884 (Utah 1981); Jenkins v. Parrish, 627 P.2d 533, 536 (Utah 1981).

After Juror No. 19 and two other jurors indicated they could not be impartial, the trial court did not address them individually, but addressed them en masse, saying:

Now, let me again indicate to the three of you--and of course we don't know what yours involved, sir--but this is a sensitive area as far as the law is concerned, but it is an area [in] which we must have jurors that are fair and impartial. We must have jurors that would be willing to sit and listen to the evidence and weigh that evidence fairly.

But again I say that we do ask you to set aside experiences in your life so that you can listen to the evidence and make an impartial decision. Again I ask if there is any of you who cannot do that, please indicate by raising your hand.

(Juror Nos. 15 and 17 indicated.)

The trial judge's soliloquy, directed to no juror in particular, amounts to a repetition of prior admonishments and a plea that the prospective jurors heed the admonitions. It does not rise to the level of the extensive rehabilitative inquiry Utah law demands. See Bailey, 605 P.2d at 768 (holding one rehabilitative question inadequate to rebut potential bias on part of prospective juror); Woolley, 810 P.2d at 447 (stating one general question, without personalized dialogue or individual probing, insufficient to rehabilitate juror to whom inference of bias had attached).

Furthermore, "inferences of bias are not to be confused with actual bias as evidenced by a prospective juror's 'attitude of bias' or 'strong feelings'.... Once such strong feelings are revealed, a prospective juror may not sit, even if the prospective juror later asserts that he or she can render an impartial verdict." Woolley, 810 P.2d at 449 (Bench, J., dissenting); accord Jones, 734 P.2d at 475 (holding prospective jurors' later statements indicating impartiality could not obviate strong inference of bias arising from earlier statements); Hewitt, 689 P.2d at 26 ("A statement made by a prospective juror that he intends to be fair and impartial loses its meaning in light of other testimony of facts that suggest a bias."); Brooks, 631 P.2d at 884 ("[W]hen a juror has expressed an attitude indicating prejudice or bias, such cannot be attenuated by the juror's determination that he can render an impartial verdict. The juror cannot be the judge of his qualifications; this function is the responsibility of the trial court."); Jenkins, 627 P.2d at 536 (holding juror's admission of bias should have resulted in successful challenge for cause even though juror expressed desire and ability to remain fair and impartial); Crawford v. Manning, 542 P.2d 1091, 1092 (Utah 1975) (holding trial court committed prejudicial error in refusing to dismiss juror who expressed strong feelings about the matter, even though she stated she could render verdict free of bias).

Based upon the foregoing, we hold that the trial court committed error by refusing to dismiss Juror No. 19 for cause.

II. APPLICATION OF STATE V. MENZIES

We next determine the consequence of the trial court's error. In March 1994, almost three years after defendant's May 1991 trial, the Utah Supreme Court issued State v. Menzies, 235 Utah Adv.Rep. 23, 1994 WL 110861 (Utah 1994). Menzies overruled a line of cases, spawned by Crawford v. Manning, 542 P.2d 1091 (Utah 1975), which firmly established an "automatic reversal" approach to erroneous for-cause rulings. Pursuant to these cases, whenever a criminal defendant removed peremptorily a prospective juror who should have been excused for cause, and exhausted his or her peremptory challenges, the court presumed prejudicial error. The defendant was therefore entitled to a new trial. See, e.g., State v. Moore, 562 P.2d 629, 630-31 (Utah 1977); State v. Bailey, 605 P.2d 765, 768 (Utah 1980); Jenkins v. Parrish, 627 P.2d 533, 536-37 (Utah 1981); State v. Brooks, 631 P.2d 878, 883 (Utah 1981); State v. Hewitt, 689 P.2d 22, 25 (Utah 1984); State v. Jones, 734 P.2d 473, 474 (Utah 1987); State v. Bishop, 753 P.2d 439, 451 (Utah 1988); State v. Gotschall, 782 P.2d 459, 461 (Utah 1989); State v. Julian, 771 P.2d 1061, 1064 (Utah 1989); State v. Carter, 233 Utah Adv.Rep. 18, 29, 1994 WL 63554 (Utah 1994).

The Menzies court disavowed this presumptive approach and adopted the majority rule, upheld by the United States Supreme Court, that "[s]o long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the [Constitution] was violated." Menzies, 235 Utah...