State v. Ewell

• Decision Date: 17 August 1993
• Docket Number: No. 920379-CA,920379-CA
• Citation: 883 P.2d 1360
• Parties: STATE of Utah, Plaintiff and Appellee, v. Jason EWELL, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1360

883 P.2d 1360

STATE of Utah, Plaintiff and Appellee, v. Jason EWELL, Defendant and Appellant.

No. 920379-CA.

Court of Appeals of Utah.

Aug. 17, 1993.

Rehearing Denied Sept. 10, 1993.

Charles F. Loyd, Jr., Elizabeth Holbrook, Salt Lake Legal Defender Ass'n, Salt Lake City, for appellant.

Jan Graham, State Atty. Gen., Charlene Barlow, Asst. Atty. Gen., Salt Lake City, for appellee.

Before BENCH, GARFF and JACKSON, JJ.

OPINION

GARFF, Judge:

Appellant, Jason Ewell, appeals his convictions of aggravated robbery, claiming the trial court should have granted a mistrial due to a juror's possibly prejudicial statement during voir dire and claiming the court misapplied the firearm enhancement statute. We affirm in part and reverse in part.

On December 12, 1991, Ewell was tried to a jury on one count of aggravated robbery. On the second day of the jury trial before Judge Sawaya, defense counsel moved for a mistrial on the basis that he had just learned that one of the jurors, Jeffrey Bogaard, had been excused for cause from Judge Rokich's courtroom two days earlier due to Bogaard's statement during voir dire that a defendant's choice not to testify might affect his decision. In the earlier trial, Judge Rokich stated, "Now, there's a jury instruction to the effect--that will be given to those finally chosen--that the defendant does not have to testify if he doesn't desire to do so. Would you hold that against him, if he didn't testify?" Bogaard responded, "I'm not sure if it would sway my opinion one way or another. I would want--depends on the course of the trial, it might sway me. I have no opinion one way or another. Depending on what comes out, it might have an effect." Shortly after giving this answer, Bogaard listened to Judge Rokich lecture him on a defendant's constitutional right to remain silent and on the presumption of innocence.

In the second trial, Judge Sawaya explained:

Under the law, ladies and gentlemen, a defendant charged with a criminal offense is presumed to be innocent until he's been proved guilty beyond a reasonable doubt. If the evidence doesn't rise to that level then your duty as jurors would be to return a verdict of not guilty. The defendant has the right to remain silent meaning he doesn't have to take the stand and testify unless he wishes to. The Defendant may be satisfied with the evidence presented by the state and feel that there's nothing to add to it. Are there any of you who feel you cannot afford to the defendant the benefit of the presumption of innocence and his right to remain silent?

No jurors responded.

Defense counsel challenged for cause the continued seating of Bogaard, arguing that the juror's answers were inconsistent and that therefore he may have been dishonest when he answered Judge Sawaya's question, and thus the juror's ability to be fair was questionable. The judge denied the motion, stating that during the voir dire in the present case, he had "instructed [the jurors] and part of that was that the defendant has a right not to testify and that his failure to testify is not a circumstance that you can hold against him and no presumptions against him can be raised." The court concluded that "I am satisfied that Mr. Bogaard and all the members of this panel are willing to follow the law of the case as I state it and that no adverse presumption would be raised against the defendant." The jury found Ewell guilty as charged.

In a separate case, Ewell pleaded guilty to one count of aggravated robbery on January 12, 1992. On February 28, 1992, the court sentenced Ewell for both convictions as follows: one term of five years to life with a one year firearm enhancement for the first conviction, another term of five years to life with a one year firearm enhancement on the second conviction, and an additional five year firearm enhancement because Ewell had been convicted of two crimes involving firearms. Ewell appealed both cases, claiming the court erred in failing to grant a mistrial due to juror bias, and in misapplying the five-year firearm enhancement statute. This court consolidated the appeals.

MOTION TO SUPPLEMENT THE RECORD

Initially, we address Ewell's motion to supplement the record with the transcript of the voir dire in Judge Rokich's courtroom in State v. Ramirez, two days before Ewell's trial. The State does not object to this court taking judicial notice of the portion of the Ramirez transcript pertaining to this case. ¹ Given that the parties do not dispute the contents of the transcript, we grant the motion to supplement the record with the portion of the Ramirez transcript regarding Bogaard's voir dire.

MISTRIAL

We next consider the State's claim that Ewell waived his claim that the trial court erred in denying his motion for a mistrial because defense counsel failed to ask the court to interrogate Bogaard about his voir dire answer. In McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), the Court stated in a footnote that if a party thinks a voir dire answer is factually incorrect at the time of a voir dire examination and the party chooses not to interrogate the juror further regarding the voir dire answer, the party would be barred from later challenging the composition of the jury. Id. at 550 n. 2, 104 S.Ct. at 847 n. 2.

The State claims that under McDonough, counsel must ask the court to interrogate the juror in order to preserve the issue on appeal. We disagree. First, the Court in McDonough did not base its holding on the waiver issue. Therefore, the statements in the McDonough footnote are dicta. Second, in this case, defense counsel was not aware that Bogaard's voir dire response was possibly inconsistent with a previous response until after voir dire had concluded. Therefore, McDonough does not require this court to bar Ewell from raising his claim that the trial court erred in denying his motion for a mistrial.

As a general rule, an attorney must timely object in a clear and concise manner. State v. Schreuder, 726 P.2d 1215, 1222 (Utah 1986). In this case, defense counsel moved for a mistrial on the basis that Bogaard's ability to be fair was questionable. Thus, the defense counsel alerted the court to the issue. Because the objection was timely, clear, and concise, we hold that Ewell is not barred from raising the issue on appeal.

We next address whether the trial court erred in failing to grant a mistrial due to Bogaard's differing responses during voir dire in Judge Rokich's courtroom and later in Judge Sawaya's courtroom. To determine whether a juror, challenged for answering falsely on voir dire, should be excused, we apply the two-prong McDonough test. State v. Thomas, 830 P.2d 243, 245 (Utah 1992) (referring to the test outlined in McDonough, 464 U.S. at 556, 104 S.Ct. at 850). Under the McDonough test, a moving party is entitled to a new trial if the party demonstrates that (1) "a juror failed to answer honestly a material question on voir dire," and (2) "a correct response would have provided a valid basis for a challenge for cause." McDonough, 464 U.S. at 556, 104 S.Ct. at 850.

Here, Bogaard had earlier been excused for cause from Judge Rokich's courtroom based on his answer to the judge's voir dire question as to whether Bogaard would hold it against the defendant if he did not testify. Bogaard did not absolutely state that he would hold it against the defendant. Instead, he said he was not sure whether it would sway his opinion. He then said he had no opinion on the subject. Shortly after this answer, Bogaard listened to Judge Rokich lecture him on a defendant's constitutional right to remain silent and on the presumption of innocence.

Judge Sawaya's question, while similar to that asked by Judge Rokich, was more extensive and contained more information about a defendant's right not to testify and the presumption of innocence. Briefly, Judge Sawaya informed the jury that a defendant has the right to remain silent, does not have to testify, and is nevertheless presumed innocent. Given the difference between the two questions and the two lectures, Bogaard's answer does not appear dishonest. See McDonough, 464 U.S. at 556, 104 S.Ct. at 850. We therefore need not reach the second prong of the McDonough test.

We conclude that the trial court did not err in failing to either conduct further investigation or grant Ewell's motion for a mistrial.

ENHANCEMENT

The remaining issue is whether the trial court erred in imposing the additional five year firearm enhancement pursuant to Utah Code Ann. § 76-3-203(4) (1990).

Ewell claims the trial court misconstrued this statute when it assessed a mandatory five year enhancement for a second conviction involving a firearm. Ewell argues that the statute applies only where one, who has been sentenced for a firearm felony, is later convicted of another firearm felony. Ewell claims that both convictions preceded the sentencing. Therefore, there was no second or subsequent conviction involving a firearm to trigger this section.

We agree. The relevant portion of section 76-3-203(4) is as follows, with our emphases:

A person who has been convicted of a felony may be sentenced to imprisonment for an indeterminate term as follows:

(4) Any person who has been sentenced to a term of imprisonment for a felony in which a firearm was used ... and is convicted of another felony when a firearm was used ... shall, in addition to any other sentence imposed, be sentenced for an indeterminate term to be not less than five nor more than ten years to run consecutively and not concurrently.

We interpret a statute "according to its literal wording unless it would be unreasonably confusing or inoperable. It is presumed that a statute is valid and that the words and phrases used were chosen carefully and advisedly." Amax Magnesium Corp. v. Tax Comm'n, 796 P.2d 1256, 1258 (Utah 1990); accord Gleave v. Denver & Rio Grande W. R.R. Co., 749 P.2d 660,...