State v. Jones
| Decision Date | 31 December 1991 |
| Docket Number | No. 890297,890297 |
| Citation | 823 P.2d 1059 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Marshall Glen JONES, Defendant and Appellant. |
| Court | Utah Supreme Court |
R. Paul Van Dam, Sandra L. Sjogren, Salt Lake City, for State of Utah.
Joan C. Watt, Elizabeth Holbrook, Salt Lake City, for Jones.
Defendant Marshall Jones appeals his convictions on two counts of aggravated sexual assault, first degree felonies, in violation of Utah Code Ann. § 76-5-405 (1990), and one count of aggravated kidnapping, a first degree felony, in violation of Utah Code Ann. § 76-5-302 (1990). Jones was found guilty by a jury and was sentenced to serve three concurrent terms of five years to life in the state prison and fined $10,000. Jones filed this appeal contending that (1) the trial court erred in not giving a jury instruction on the elements of the crime of aggravated kidnapping; (2) a juror's and the prosecutor's lack of candor with respect to the jury selection process resulted in reversible error as to all convictions; and (3) Jones received ineffective assistance of counsel. We reverse the conviction for aggravated kidnapping because of the absence of an elements instruction and remand for a new trial on that charge, but affirm the convictions for aggravated sexual assault.
On October 20, 1988, at about 8:40 p.m., the victim was walking to her car, which was parked on the campus of the University of Utah, when she was approached by Jones, who asked her where a particular building was located. The victim testified that after she responded and began to unlock her car, Jones approached her with a screwdriver in his hand and directed her to get into the car and move to the passenger's side. She testified that Jones sat in the driver's seat and told her that he did not want to injure her, and she responded, "Don't do this." Jones ordered the victim to remove her sweatshirt and then took her keys and started to drive the car. He steered the car with one hand and held the screwdriver with his other hand, while the victim shifted gears. Jones told the victim that he had seen her before, but the victim did not recognize him.
Over a period of approximately 90 minutes, Jones drove the victim to various locations in the vicinity of the University of Utah campus. He stopped periodically and committed or attempted to commit various sexual acts with the victim. Eventually, Jones and the victim drove back to the University of Utah campus, and Jones parked the car. After he left and ran south, the victim drove to the parking services building where she worked. The police were notified, and eventually the victim was taken to Holy Cross Hospital.
A Fort Douglas security officer who had heard the dispatched description of the suspect realized that Jones fit the description and notified the University of Utah police. Jones was apprehended the same evening at the University of Utah Marriott Library, where he worked as a janitor. He was taken to the University police station, where he gave a statement denying involvement in the incident and accounting for his time during the period when the incident occurred.
At trial, Jones conceded that he had engaged in sexual activities with the victim. However, he claimed that he had met the victim a few days before the incident and that she had recognized him on the evening of the 20th as they passed each other on the campus. Jones claimed that she invited him into her car and that the activities that followed were consensual. Jones admitted that he had a screwdriver with him on the evening of October 20, 1988, but claimed that he never threatened the victim with it. Jones theorized that the victim may have seen the screwdriver when he took a condom out of his pocket.
On appeal, Jones first asserts that the trial court did not give an instruction on the elements of aggravated kidnapping. The trial judge gave an information instruction stating the statutory definition of the crime, but did not give an elements instruction for aggravated kidnapping, even though elements instructions were given for each of the other counts. Jones did not object to the trial court's failure to give an elements instruction, nor did he proffer one himself. He raised the issue in the trial court for the first time on a post-verdict motion.
The State concedes that State v. Laine, 618 P.2d 33 (Utah 1980), controls this issue. The law in this state is that an information instruction is not a substitute for an elements instruction. The jury must be instructed with respect to all the legal elements that it must find to convict of the crime charged, and the absence of such an instruction is reversible error as a matter of law. Laine, 618 P.2d at 35. In State v. Roberts, 711 P.2d 235 (Utah 1985), we stated, Id. at 239 (Utah 1985) (citing Laine, 618 P.2d at 35). See also State v. Harmon, 712 P.2d 291, 292 (Utah 1986) (per curiam); State v. Reedy, 681 P.2d 1251, 1252 (Utah 1984). Thus, the failure to give this instruction can never be harmless error.
The complete absence of an elements instruction on a crime charged is an error we review to avoid manifest injustice. See Utah R.Crim.P. 19(c); State v. Lesley, 672 P.2d 79, 81 (Utah 1983); Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 1038, 89 L.Ed. 1495 (1945); State v. Cobo, 90 Utah 89, 60 P.2d 952, 958-59 (1936); People v. Wickersham, 32 Cal.3d 307, 650 P.2d 311, 326-27, 185 Cal.Rptr. 436, 451-52 (1982) (en banc). Cf. State v. Bell, 563 P.2d 186, 187 (Utah 1977). It follows that even though Jones failed to object to the lack of an elements instruction when the instructions were given, the trial court's complete failure to give an elements instruction on aggravated kidnapping is clear error and requires reversal of the conviction and remand for a new trial on that charge.
Jones next contends that lack of candor by a juror and the prosecutor during the jury selection process tainted the entire process and requires reversal of all convictions. During voir dire, juror Pamela Young was asked if she knew anyone in the Salt Lake County Attorney's office. She indicated that she knew Scott Matheson, Jr., but no one else in the office. The prosecutor made no comment during the voir dire of Young. On the morning of the second day of trial, the prosecutor informed the court that he had learned that juror Young had waved to the prosecutor's secretary, who had waved back. The prosecutor offered the following explanation:
Your Honor, I suppose that the State is the moving party in this. I received a telephone call during the recess. I returned the telephone call during the recess, I guess would be more accurate. Mr. Glen Iwasaki of my office informed me that his--that my secretary, Vicky Cowan, who had delivered some documents to me during the court this morning had reported to him that one of the jurors had waved to her or in some other fashion indicated recognition of her. Apparently, my secretary had waved back in some fashion, as well, before leaving the courtroom.
That's all of the information I have. I believe that it was juror No. 4 that this pertains to, your Honor. That would be Ms. Young, I think. I don't know what significance to attach to this. But because it did take place between the juror and an employee of our office, while court was in session, I thought it best to bring it to the attention of [defense counsel] and the Court.
During a hearing which followed, testimony indicated that juror Young had known the prosecutor's secretary, Ms. Cowan, for approximately three or four years, but that they had only seen each other three or four times a year. It was also revealed during the hearing that juror Young had been a witness for the State in another prosecution within the preceding few months. Ms. Cowan testified that prior to the morning session, ...
To continue reading
Request your trial
-
State v. Ott
...appellate counsel, would have taken a different course.’ ” Parsons v. Barnes, 871 P.2d 516, 524 (Utah 1994) (quoting State v. Jones, 823 P.2d 1059, 1063 (Utah 1991)). Additionally, “whenever there is ‘a legitimate exercise of professional judgment in the choice of trial strategy, the fact t......
-
State v. King
...tactical decisions simply because another lawyer, e.g., appellate counsel, would have taken a different course.” State v. Jones, 823 P.2d 1059, 1063 (Utah 1991). Where, as here, defense counsel's chosen strategy “falls within the wide range of reasonable professional assistance,” Strickland......
-
State v. Clark
...the trial court's failure to instruct the jury on the basic elements of an offense cannot be considered harmless error. State v. Jones, 823 P.2d 1059, 1061 (Utah 1991). But where, as here, the facts indisputably establish an element and that element is not an issue at trial, a trial court's......
-
Parsons v. Barnes
...tactical decisions simply because another lawyer, e.g., appellate counsel, would have taken a different course." State v. Jones, 823 P.2d 1059, 1063 (Utah 1991). Likewise, whenever there is "a legitimate exercise of professional judgment in the choice of trial strategy, the fact that it did......
-
A critical analysis of objectivity in the legal sphere.
...State v. Jarrell, 608 P.2d 218 (1980). State v. Johns, 615 P.2d 1260 (1980). State v. Johnson, 821 P.2d 1150 (1991). State v. Jones, 823 P.2d 1059 (1991). State v. McCovey, 803 P.2d 1234 (1990). State v. Myers, 606 P.2d 250 (1980). State v. Pierre, 572 P.2d 1338 (1977). State v. Ramirez, 81......