State v. King

• Decision Date: 13 January 2006
• Docket Number: No. 20040727.,20040727.
• Citation: 2006 UT 3,131 P.3d 202
• Parties: STATE of Utah, Plaintiff and Petitioner, v. Gordon R. KING, Defendant and Respondent.
• Court: Utah Supreme Court

131 P.3d 202

2006 UT 3

STATE of Utah, Plaintiff and Petitioner, v. Gordon R. KING, Defendant and Respondent.

No. 20040727.

Supreme Court of Utah.

January 13, 2006.

Mark L. Shurtleff, Att'y Gen., Jeffrey S. Gray, Asst. Att'y Gen., T. Langdon Fisher, Salt Lake City, for plaintiff.

Elizabeth Hunt, Salt Lake City, for defendant.

PARRISH, Justice:

INTRODUCTION

¶ 1 Defendant Gordon King was convicted of attempted forcible sexual abuse. Despite the fact that he had passed the jury for cause, King appealed, arguing that the trial court erred by failing to individually question two jurors who had indicated that either they or a close friend or family member had been the victim of abuse. The court of appeals reversed King's conviction, holding that the trial court had failed to fulfill its duty of ensuring a fair and impartial jury. The State petitioned for certiorari, arguing that King had failed to preserve the issue of juror bias for appellate review and that King was unable to establish plain error. We agree and accordingly reverse.

BACKGROUND

¶ 2 King was charged by information with aggravated sexual abuse of a child, a first degree felony, after his daughter's friend reported that he had inappropriately touched her during a sleepover at his home. King pleaded not guilty, and the case proceeded to a jury trial.

¶ 3 The trial judge began jury selection by asking whether any of the prospective jurors were acquainted with any of the parties or witnesses in the case. The trial judge then read the information to the jury pool and asked whether the nature of the case would cause any of them to believe that "they would be unable to be fair and impartial." Five prospective jurors responded affirmatively. The trial judge asked each of these prospective jurors follow-up questions to determine the extent of any possible biases. After learning that two of the affirmative responses resulted from the fact that either those prospective jurors, their family members, or their close friends had experienced instances of sexual abuse, the judge asked the entire panel whether "there [was] anyone else who either ha[d] been the victim of abuse or ha[d] had a family member or a close personal friend who ha[d] been the victim of abuse." Six additional members of the jury pool raised their hands. The trial judge asked each of them whether that experience "would interfere with [their] ability to be fair and impartial." Only one potential juror responded affirmatively, and she was dismissed for cause.

¶ 4 Despite the assurances from the remaining five prospective jurors that they could be impartial, the trial judge declared that she would like to individually question each of them, as well as the initial five jurors who had indicated an inability to be impartial, to determine the extent of any biases. She instructed the jury pool to exit the courtroom and then called in each individual juror who had affirmatively responded to the inquiries regarding bias or abuse.

¶ 5 The judge first interviewed the five jurors who initially had indicated that they would have some difficulty being fair and impartial due to the nature of the case. The trial judge removed all but one of these five potential jurors for cause, and King removed the remaining juror through use of a peremptory challenge.

¶ 6 The trial judge then began questioning the prospective jurors who had indicated that they, a family member, or a close personal friend had been a victim of abuse. Although the judge individually questioned four of these prospective jurors, she failed—apparently inadvertently—to question the other two. Neither counsel for the defense nor counsel for the prosecution pointed out the omission,¹ and the two jurors who had not been subjected to any follow-up questioning regarding their experience with abuse were ultimately empaneled on the jury.

¶ 7 Before calling the entire jury pool back into the courtroom, the trial judge asked King and the State the following question: "To this point in time, do both sides pass the jury for cause?" Counsel for both parties responded affirmatively. The jury pool then returned to the courtroom, and the prospective jurors discussed their occupations, marital status, and hobbies, among other things. After the prospective jurors provided this information, the trial judge gave counsel for each side the opportunity to ask additional questions. Although King's counsel posed some additional questions, those questions did not address any potential concerns about the two prospective jurors who had admitted some experience with abuse but who had not been individually questioned regarding that experience. Rather, King's counsel asked the jurors whether any of them had experiences with King's employer that would interfere with their ability to act impartially and whether each prospective juror would feel comfortable being judged by jurors with his or her equivalent state of mind.

¶ 8 After counsel for both sides indicated that they had no further questions for the jury pool, the names of eight prospective jurors were called, and the trial judge asked King's counsel if this was the jury that he selected. King's counsel responded, "It is, your Honor." Accordingly, the remaining prospective jurors were excused, and the jury was sworn.

¶ 9 The jury returned a verdict of guilty on the lesser included charge of sexual abuse of a child, a second degree felony. Pursuant to section 76-3-402 of the Utah Code, the trial court reduced King's conviction to attempted sexual abuse of a child, a third degree felony. King timely appealed his conviction to the court of appeals, arguing that the trial court had failed to ensure his right to a fair and impartial jury when it allowed the two jurors who had not been individually questioned to serve on the jury.

¶ 10 The court of appeals reversed King's conviction, holding that "the trial court failed to fully satisfy its responsibility to detect, probe, and eliminate juror bias during the jury selection process." State v. King, 2004 UT App 210, ¶ 1, 95 P.3d 282. In so holding, the court of appeals reviewed the trial court's empaneling of the jury for abuse of discretion, id. ¶ 10, despite the fact that King had failed to raise any objection to the two jurors during voir dire. The court of appeals declared that our prior case law, which "impose[s] a requirement for demonstrating prejudice" in those instances in which a defendant failed to either object to a juror for cause or use a peremptory strike to remove the juror, was "inapplicable." Id. ¶ 26 (citations omitted). It excused King's failure to object, reasoning that King had insufficient information on which to base a challenge for cause "[b]ecause the trial court did not fulfill its obligation to fully probe the jurors about their potential prejudice." Id.

¶ 11 The State petitioned for certiorari, which we granted. We have jurisdiction pursuant to Utah Code section 78-2-2(3)(a) (2002).

ANALYSIS

¶ 12 "On certiorari, we review the court of appeals' decision for correctness, focusing on whether that court correctly reviewed the trial court's decision under the appropriate standard of review." Hansen v. Eyre, 2005 UT 29, ¶ 8, 116 P.3d 290 (internal quotation marks omitted). The State contends that the court of appeals' holding is erroneous because it contravenes our prior case law, which applies plain error review in those cases in which the defendant failed to object to a juror for cause during voir dire. The State argues that because King did not object to either juror during voir dire, we cannot review the trial court's actions for abuse of discretion. Rather, we must review its actions for plain error, which requires that King establish actual prejudice. We agree.

¶ 13 We have consistently held that a defendant who fails to preserve an objection at trial will not be able to raise that objection on appeal unless he is able to demonstrate either plain error or exceptional circumstances. See State v. Cram, 2002 UT 37, ¶ 9, 46 P.3d 230; Monson v. Carver, 928 P.2d 1017, 1022 (Utah 1996). This rule is designed to (1) ensure that the trial court has "an opportunity to address the claimed error, and if appropriate, correct it," and (2) inhibit a defendant from "forego[ing] ... an objection with the strategy of enhancing the defendant's chances of acquittal and then, if that strategy fails, . . . claiming on appeal that the [c]ourt should reverse." Cram, 2002 UT 37, ¶ 10, 46 P.3d 230 (internal quotation marks omitted). Stated another way, under our preservation rule, "`defendants are ... not entitled to both the benefit of not objecting at trial and the benefit of objecting on appeal.'" Id. ¶ 10 (quoting State v. Brown, 948 P.2d 337, 343 (Utah 1997)).

¶ 14 The preservation rule is grounded in our adversarial system of justice, which looks to the parties to zealously advocate their cause before an impartial fact finder. "The rule that points not argued will not be considered is more than just a prudential rule of convenience; its observance, at least in the vast majority of cases, distinguishes our adversary system of justice from the inquisitorial one." United States v. Burke, 504 U.S. 229, 246, 112 S.Ct. 1867, 119 L.Ed.2d 34 (1992) (Scalia, J., concurring); see also Brinkerhoff v. Schwendiman, 790 P.2d 587, 589 (Utah Ct.App.1990) ("It is axiomatic in our adversary system that a party must raise an objection in an earlier proceeding or waive its right to litigate the issue in subsequent proceedings."); Polster v. Griff's of Am., Inc., 184 Colo. 418, 520 P.2d 745, 747 (1974) ("[T]he trial court ... should not assume the role of advocate .... These are the basic functions of trial counsel in our adversary system of justice and underlie the rationale of the contemporaneous objection rule."); Reynolds v. City Hosp., Inc., 207 W.Va. 101, 529 S.E.2d 341, 350 (2000) ("In the end, the contemporaneous objection requirement serves an important purpose in...