State v. Brooks
| Decision Date | 12 January 1994 |
| Docket Number | No. 920853-CA,920853-CA |
| Citation | 868 P.2d 818 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Cory L. BROOKS, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Elizabeth Holbrook (argued), Ronald S. Fujino, Legal Defender Ass'n, Salt Lake City, for appellant.
Jan Graham, State Atty. Gen., J. Kevin Murphy (argued), Asst. Atty. Gen., Salt Lake City, for appellee.
Before BENCH, RUSSON and GARFF, 1 JJ.
AMENDED OPINION 2
Cory L. Brooks appeals his conviction for aggravated robbery, a first degree felony in violation of Utah Code Ann. § 76-6-302 (1990), and aggravated burglary, a first degree felony in violation of Utah Code Ann. § 76-6-203 (1990). Defendant alleges that the trial court erred by not removing for cause certain jurors, that his trial counsel was ineffective, and that he is being illegally punished twice for the same crime. We affirm.
Defendant responded to a newspaper advertisement placed by Stephanie Vert, offering for sale a distinctive diamond ring. Defendant examined the ring in the Vert's home, spending thirty to forty-five minutes with Stephanie and her mother, Martha Vert. Defendant indicated that he wished to purchase the ring and that he would return to their home the next morning for that purpose.
Stephanie was the only one home the next morning when defendant arrived. Stephanie invited defendant in and offered him some coffee. Defendant picked up the diamond ring and then pointed a pistol at Stephanie and ordered her to crawl into a bathroom. Defendant then produced handcuffs and ordered Stephanie to handcuff herself to plumbing beneath the sink. When Stephanie did not handcuff herself to defendant's satisfaction, he produced a set of keys and ordered her to recuff herself. He then threatened her by saying, "You better not remember what I look like."
Defendant spent ten to twelve minutes rummaging through the Vert's home. Using a walkie-talkie, he spoke to an apparent accomplice, arranging to be picked up outside the Vert's home. After defendant left, Stephanie freed herself by unscrewing the plumbing and then called for help. The Verts claimed that defendant stole several thousand dollars worth of jewelry, including the diamond ring, from their home.
Shortly after the robbery, defendant visited with friends and offered to sell them some jewelry, including a diamond ring. During this visit, defendant and his friends saw a television account of the Vert robbery. Defendant boasted that he was the one who had Stephanie gave an accurate description of defendant the day of the robbery, and later positively identified defendant from a photo array. Several months after the crime, she also positively identified defendant from a lineup. Martha Vert had difficulty identifying defendant from the photo array, but she independently identified him from the lineup as the person who had come to her home and examined the ring the night before the robbery.
committed the robbery. Before defendant left, he gave his friends a chain taken from the Vert home. The friends subsequently called the police and turned the chain over to them. Martha Vert later identified the chain as one of the items stolen from her home.
Defendant was charged with aggravated robbery, aggravated burglary, and possession of a dangerous weapon by a restricted person. Defendant's first trial ended in a mistrial due to a hung jury.
Prior to the second trial, the trial court conducted voir dire of prospective jurors. Initial voir dire by the trial court involved ascertaining whether prospective jurors had any acquaintance with the parties, court personnel, attorneys, or witnesses. The trial court then explained the charges, and determined that none of the prospective jurors had heard of the case against defendant.
The court then engaged in the following exchange:
Mr. Barber did not indicate that he would, in any way, be biased against either the defense or the prosecution.
The trial court also asked the prospective jurors whether they had ever been subjected to any assaults or threats, and whether any had been victim of a burglary. Several prospective jurors responded affirmatively. The trial court engaged in the following conversation with the prospective jurors who had responded affirmatively:
....
The court then addressed a series of four questions to ascertain whether the prospective jurors could try the case fairly and impartially. The court asked whether the prospective jurors would be willing to have their own guilt or innocence determined by people in the same frame of mind as the prospective jurors. The court also asked the prospective jurors whether, in their present state of mind, there was anything that would prevent them from acting fairly and impartially on the evidence presented without prejudicing the substantial rights of either party. None of the prospective jurors offered a response that would indicate bias.
Mrs. Geurts was questioned further in chambers because her husband had been a defense witness in a case prosecuted by the prosecutor in the instant case. The prosecutor also believed that he and Mrs. Geurts had attended the same church in the past. When questioned by defense counsel, Mrs. Geurts indicated that these factors would not affect her impartiality in hearing the case. Neither counsel moved to strike for cause prospective jurors Geurts, Heap, Pike, or Barber. Defense counsel used a peremptory challenge to remove Geurts. Heap, Pike, and Barber served on defendant's jury.
The jury found defendant guilty of aggravated robbery and aggravated burglary. Defendant was given concurrent sentences for each offense and ordered to pay fines and restitution. Because defendant used a pistol to commit the offenses, and because he was on parole when he committed them, the trial court found defendant guilty of possession of a dangerous weapon by a restricted person and his sentences were enhanced under the firearm enhancement statute. The sentences were imposed to run consecutively to another uncompleted sentence at the Utah State Prison.
Defendant argues, for the first time on appeal, that the trial court committed plain error by not removing for cause prospective jurors Geurts, Heap, Pike, and Barber. In the alternative, defendant argues that his trial counsel was constitutionally ineffective because he failed to request an adequate voir dire of the prospective jurors. Defendant also argues, for the first time on appeal, that his convictions for robbery and burglary illegally punish him twice for the same crime.
At trial, defense counsel passed the jury for cause, without in any way objecting to prospective jurors Geurts, Heap, Pike, or Barber. Where, on appeal, defendant challenges the trial court's failure to remove prospective jurors and, at trial defense counsel did not move to strike the prospective jurors for cause, we utilize a "plain error" standard of review. State v. Ellifritz, 835 P.2d 170, 174 (Utah App.1992). 3 The requirements for determining whether plain error has occurred were articulated in State v. Eldredge, 773 P.2d 29 (Utah 1989), cert. denied, 493 U.S. 814, 110 S.Ct. 62, 107 L.Ed.2d 29 (1989), as follows:
The first requirement for a finding of plain error is that the error be "plain," i.e., from our examination of the record, we must be able to say that it should have been obvious to a trial court that it was committing error.... The second and somewhat interrelated requirement for a finding of plain error is that the error affect the substantial rights of the accused, i.e., that the error be harmful.
Id. at 35 (citations omitted).
Therefore, even if we can conclude that the trial court made an obvious error, we will not reverse unless defendant demonstrates that, absent the error, there is a sufficient likelihood of a different result. Ellifritz, 835 P.2d at 174. "There is a sufficient likelihood of a different result when the appellate court's confidence in the verdict is As an alternative means of challenging the jury selection procedures for the first time on...
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