State v. Baker
| Decision Date | 21 March 1997 |
| Docket Number | No. 940569,940569 |
| Citation | 935 P.2d 503 |
| Parties | 313 Utah Adv. Rep. 15 STATE of Utah, Plaintiff and Petitioner, v. Mark Joseph BAKER, Defendant and Respondent. |
| Court | Utah Supreme Court |
Jan Graham, Atty. Gen., J. Kevin Murphy, Asst. Atty. Gen., E. Neal Gunnarson, Salt Lake City, for plaintiff and petitioner.
Robert K. Heineman, Salt Lake City, for defendant and respondent.
ON CERTIORARI TO THE UTAH COURT OF APPEALS
The State seeks review of a court of appeals decision vacating defendant Mark Baker's convictions for rape of a child and sodomy on a child on the ground that one of the jurors who convicted Baker was biased. State v. Baker, 884 P.2d 1280 (Ct.App.1994), cert. granted, 892 P.2d 13 (Utah 1995). We granted certiorari to address the narrow legal question of whether a convicted criminal defendant is entitled to reversal on appeal when the trial court erroneously denied a for-cause challenge and the defendant failed to cure the error by exercising a peremptory challenge against the juror challenged for cause, but instead used all his peremptory challenges to exclude other potential jurors whom he had not challenged for cause.
The relevant facts are not disputed. The State charged Baker with raping and sodomizing H.H., his young stepdaughter. During voir dire, three jurors, numbers 15, 17, and 19, indicated that they would be unable to remain impartial to evidence concerning sexual abuse of a child. Juror 19 stated that his sister had been raped and sodomized approximately ten years earlier when she was eight years old. The trial judge asked these three Following his conviction, Baker appealed to this court, and we transferred the case to the court of appeals. That court held that the trial court committed reversible error by failing to remove juror 19 for cause. Baker, 884 P.2d at 1287. The court further determined that State v. Menzies, 889 P.2d 393 (Utah 1994), decided three years after Baker's 1991 trial, applied retroactively to Baker's case. Baker, 884 P.2d at 1284. However, the court then distinguished Menzies on its facts, id. at 1285, and held that because a biased juror participated on the jury that convicted Baker, he had been prejudiced. Id. at 1287. Therefore, the court vacated his conviction and ordered a new trial. Id. We granted the State's petition for a writ of certiorari.
jurors whether they could "set aside" their personal experiences and "give the State and the defendant a fair and impartial trial." They indicated that they could not. The judge then summarily repeated his prior admonitions and asked the jurors en masse to respect these admonitions. Again, the judge asked if there were any jurors who could not listen to the evidence and make an impartial decision. Juror 19 then withdrew his prior affirmative admission of bias. Jurors 15 and 17 indicated, however, that they could not make an impartial decision, and they were excused for cause. Although defendant also challenged juror 19 for cause and apparently the State did not oppose the challenge, the trial court denied it. Neither Baker nor the State used a peremptory challenge to remove juror 19. Baker subsequently used all four of his peremptory challenges to remove four women prospective jurors. Consequently, juror 19 sat on the jury that convicted Baker
The State asks this court to adopt a "cure or waive" rule. Under that rule, a defendant whose for-cause challenge has been erroneously denied would have to attempt to "cure" that error or be held to have "waived" it. Specifically, if the defendant had a peremptory challenge available, he or she would have to use it on the challenged juror. If the defendant did not so use the peremptory, then the error would be deemed waived. Moreover, because Menzies held that no ground for reversal exists unless a biased juror is actually retained on the panel, the issue would be preserved for appeal only if the number of jurors the trial court erroneously refused to dismiss for cause exceeded the number of peremptories available to the defendant.
The court of appeals declined to adopt the cure-or-waive rule. Whether this rule should be adopted is a question of law which this court must decide de novo. State v. Pena, 869 P.2d 932, 936 (Utah 1994).
The peremptory challenge was created by rule and is designed to facilitate the seating of a jury that will listen without bias to the evidence and do justice to both parties. Utah Rule of Criminal Procedure 18(d) provides in pertinent part: The State contends that defendant should have used one of his four available peremptory challenges to remove juror 19 after the trial court failed to excuse that juror for cause. Defendant responds that such a requirement would force him to accept a less favorable jury because he then could not have removed all four of the women against whom he subsequently exercised his peremptory challenges.
Neither the United States Constitution nor the Utah Constitution provides a right to a certain number of peremptory challenges, or indeed to any at all. Likewise, neither constitution guarantees a defendant the "most favorable" jury. The trial rights that these constitutions do provide are clearly stated in their texts. Amendment VI of the United States Constitution guarantees "the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." Article I, section 12 of the Utah Constitution provides the accused the right "to have a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed." Neither constitution specifies peremptory challenges as the mechanism for obtaining the promised impartial jury.
We recognized the nonconstitutional status of the peremptory challenge in Menzies, 889 P.2d at 398, when we overruled Crawford v. Manning, 542 P.2d 1091 (Utah 1975), which held that "reversal is required whenever a party is compelled 'to exercise a peremptory challenge to remove a panel member who should have been stricken for cause.' " 889 P.2d at 398. The trial court in Menzies denied the defendant's for-cause challenge of several prospective jurors. Menzies responded by peremptorily removing them. After the jury returned a guilty verdict, Menzies appealed, arguing that the trial court committed error under Crawford 's rule. We overturned Crawford 's automatic reversal rule in favor of "the approach utilized by a majority of the states and upheld by the federal courts," id., which the United States Supreme Court employed to "reject the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury." Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988). Because Menzies exercised his peremptory strikes to remove the prospective jurors he found objectionable and did not assert that any of the jurors who ultimately sat were prejudiced, we held that any error of the trial court in failing to remove the jurors for cause was harmless. 889 P.2d at 400. Thus Menzies rejects the notion that peremptory strikes are constitutionally unfettered and holds that a defendant waives error by exercising peremptories to achieve an impartial jury. As the authorities embraced in Menzies explain, "So 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." Ross, 487 U.S. at 88, 108 S.Ct. at 2278 (citing Hopt v. Utah, 120 U.S. 430, 7 S.Ct. 614, 30 L.Ed. 708 (1887)). After Menzies, "[t]o prevail on a claim of error based on the failure to remove a juror for cause, a defendant must demonstrate prejudice, viz., show that a member of the jury was partial or incompetent." 889 P.2d at 398.
Baker argues that the jury which convicted him was not impartial. Nonetheless, he had a fair opportunity to cure this bias through the use of one of his peremptory challenges. Unlike the defendant in Menzies, however, Baker did not use a peremptory strike to remove the biased juror when the trial court denied his for-cause challenge. Instead, Baker's counsel subsequently chose to use his peremptories to remove from the panel four women whom he had not challenged for cause. Baker states that this decision was a strategy designed to assemble "the best jury he could" but that through no fault of his own and as a result of the trial court's error, "that jury was unconstitutionally biased." The United States Supreme Court has observed, however, that "the Constitution entitles a criminal defendant to a fair trial, not a perfect one." Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). Under Menzies and Ross, the peremptory is not constitutionally guaranteed. It is an important tool designed to foster an impartial jury. However, Baker failed to use this tool. Consequently, his own inaction waived his objection to the empaneling of juror 19, just as it would have--pursuant to Menzies--if he had chosen to remove the juror and was unable to show on appeal that the use of his peremptory challenge compelled him to accept a biased juror. In short, after our decision in Menzies, the privilege of unfettered peremptory challenges must remain subordinate to a party's best efforts to seat an impartial jury.
Baker insists that the cure-or-waive rule invites "bizarre results." For example, he argues that the rule "would require the defendant and defense counsel to take affirmative action to ensure that any conviction obtained will stand up on appeal," thereby placing defense counsel in an...
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