State v. King

Decision Date31 August 2006
Docket NumberNo. 20030069-CA.,20030069-CA.
PartiesSTATE of Utah, Plaintiff and Appellee, v. Gordon R. KING, Defendant and Appellant.
CourtUtah Court of Appeals

Elizabeth Hunt, Elizabeth Hunt LLC, Salt Lake City, for Appellant.

Mark L. Shurtleff, Attorney General, and Jeffrey S. Gray, Assistant Attorney General, Salt Lake City, for Appellee.

Before Judges BILLINGS, McHUGH, and ORME.


ORME, Judge:

¶ 1 Gordon R. King appeals his conviction of sexual abuse of a child. See Utah Code Ann. § 76-5-404.1 (2003). We previously reversed King's conviction and remanded for a new trial, deciding that the trial court failed in its duty to sufficiently question prospective jurors regarding possible biases. See State v. King, 2004 UT App 210, ¶ 27, 95 P.3d 282. The Utah Supreme Court granted certiorari, determined there was no error on the part of the trial court, and remanded the case to us so that we could consider King's claim of ineffective assistance of counsel. See State v. King, 2006 UT 3, ¶ 26, 131 P.3d 202. We again reverse King's conviction and remand for a new trial.


¶ 2 During the jury selection phase of this case, the trial judge asked the prospective jurors to indicate whether, considering the nature of the case, "they would be unable to be fair and impartial." Five prospective jurors responded in the affirmative. After asking some follow-up questions of these five prospective jurors, the trial judge decided to ask all the other prospective jurors whether any of them "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." In response, six additional prospective jurors raised their hands. Although only one of these six prospective jurors initially indicated that the experience would affect her ability to be "fair and impartial," the trial judge decided to individually question each of these six prospective jurors—in addition to the original five prospective jurors who had earlier indicated a possible bias and had not yet been sufficiently questioned—out of the presence of the other prospective jurors.

¶ 3 The judge then proceeded to individually interview all of the first five prospective jurors and four of the latter six prospective jurors. Through some oversight, however, two of the latter six prospective jurors were not questioned further and both served on the jury that convicted King.2 King now argues that his counsel was ineffective for failing to call this oversight to the trial court's attention.


¶ 4 King raises an ineffective assistance of counsel claim for the first time on appeal. Because King is represented by different counsel on appeal and since the record is sufficient to review King's claim, we may determine for the first time on appeal whether King's trial counsel was ineffective. See State v. Chacon, 962 P.2d 48, 50 (Utah 1998). And we evaluate such a claim as a matter of law. See id.


¶ 5 To be successful on a claim of ineffective assistance of counsel, a defendant must demonstrate two things: "First, the defendant must show that counsel's performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We will address each of these requirements in turn.

I. Deficient Performance

¶ 6 When determining whether counsel rendered deficient performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689, 104 S.Ct. 2052 (internal quotations and citation omitted). And even if defense counsel approves a prospective juror "who initially appeared biased on voir dire," such approval may, in some circumstances, be a "legitimate trial tactic[]" and, thus, not alone sufficient to establish that counsel's performance in not challenging the prospective juror was deficient. State v. Cosey, 873 P.2d 1177, 1180 (Utah Ct.App.), cert. denied, 883 P.2d 1359 (Utah 1994). See also State v. Tennyson, 850 P.2d 461, 469 (Utah Ct.App.1993) (refusing to find counsel's performance deficient when she did not challenge a juror with some degree of bias, the court reasoning that "[f]or all we know, [this juror] was the most attentive juror, or the only one who glanced disparagingly at the prosecution or sympathetically toward the defendant"). But although it may sometimes be sound trial strategy for counsel to retain a prospective juror who has at some point during voir dire indicated a possible bias, the retention of such a prospective juror necessitates, at a minimum, that counsel make further inquiry into the potential bias to glean some rudimentary facts that would help counsel determine whether such a strategy is in fact sound. In other words, we presume sound trial strategy unless the defendant can make "at least some showing that trial counsel has failed to reasonably participate in the selection of jurors." Cosey, 873 P.2d at 1180. See also Tennyson, 850 P.2d at 468 (determining counsel's performance was not deficient, in part because counsel was "actively engaged in the [jury] selection process").

¶ 7 With respect to the two overlooked jurors in the instant case, it is evident that trial counsel failed to reasonably participate in the selection process. Six members of the jury pool initially appeared biased when they indicated that either they, a family member, or a close personal friend had been a victim of abuse. Without any articulated reason, the trial judge then proceeded to further question only four of those six prospective jurors, completely overlooking two of them. Counsel here was remiss in not noticing the omission, bringing it to the trial court's attention, and requesting that the court follow through with its original intention to further question all prospective jurors who identified themselves as having a possible bias.3

¶ 8 As the Supreme Court previously emphasized in this case, effective defense counsel plays a highly important role in the adversarial process. See State v. King, 2006 UT 3, ¶ 16, 131 P.3d 202. Indeed, "a trial court's lack of familiarity with the specific facts of a case at the beginning of a trial suggests that the selection of an impartial jury depends heavily upon the parties' participation and vigilance in detecting possible biases." Id. It is also important for counsel to assist the trial court in ferreting out all bias at this early stage because of "the ease with which any allegation of juror bias may be investigated and remedied during the jury selection process." Id. at ¶ 17. Thus, to ensure the selection of an impartial jury, the trial court heavily "rel[ies] on counsel to raise all possible objections to the jurors before the selection process concludes" in order to "allow the trial court to easily and effectively remedy any claim of bias." Id. Here, the trial court's reliance upon counsel is especially clear because the trial judge repeatedly asked counsel if there were any other prospective jurors who needed additional questioning regarding potential biases.

¶ 9 Since trial counsel bears the responsibility of actively investigating possible biases that are disclosed during jury selection, there is no conceivable sound trial strategy that would allow the acceptance of potentially biased jurors without at least some further inquiry. Cf. State v. Templin, 805 P.2d 182, 188 (Utah 1990) (finding deficient performance when counsel failed to investigate potential defense witnesses, "because a decision not to investigate cannot be considered a tactical decision"). Consequently, simple uninformed acceptance of apparently biased jurors, as happened here, amounts to deficient performance by trial counsel.

II. Resulting Prejudice

¶ 10 Under the second prong of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), King must also show that his counsel's deficient performance was prejudicial. See id. at 687, 104 S.Ct. 2052. In most cases, there is "a general requirement that the defendant affirmatively prove prejudice." Id. at 693, 104 S.Ct. 2052. Strickland instructs, however, that "[i]n certain Sixth Amendment contexts, prejudice is presumed." Id. at 692, 104 S.Ct. 2052. We believe the instant case falls within that category because it bears the hallmarks of those rare situations specifically mentioned in Strickland where prejudice may be properly presumed.

¶ 11 Under Strickland, we presume prejudice in circumstances where prejudice "is so likely that case-by-case inquiry into prejudice is not worth the cost." Id. See also Parsons v. Barnes, 871 P.2d 516, 523 n. 6 (Utah) ("[P]ursuant to our `inherent supervisory power over the courts,' we may presume prejudice in circumstances where it is `unnecessary and ill-advised to pursue a case-by-case inquiry to weigh actual prejudice.'") (quoting State v. Brown, 853 P.2d 851, 857, 859 (Utah 1992)), cert. denied, 513 U.S. 966, 115 S.Ct. 431, 130 L.Ed.2d 344 (1994). Under the circumstances presented in the instant case, where two prospective jurors were not questioned further about apparent bias but were allowed to serve on the jury that ultimately convicted the defendant, prejudice is extremely likely.4

¶ 12 We may also presume prejudice in cases where "it is difficult to measure the precise effect" of counsel's error. Strickland, 466 U.S. at 692, 104 S.Ct. 2052. From the post-trial vantage point, it would be nearly impossible for King to prove, or for us to determine, actual prejudice with any degree of accuracy. Based on the initial question the judge asked the prospective jurors, it is not clear whether these two jurors may have been biased because of...

To continue reading

Request your trial
7 cases
  • State v. King
    • United States
    • Court of Appeals of Utah
    • 30 Diciembre 2010
    ...reversed King's conviction and remanded for a new trial. See State v. King ( King I ), 2004 UT App 210, ¶ 27, 95 P.3d 282; State v. King ( King III ), 2006 UT App 355, ¶ 16, 144 P.3d 222. As discussed more fully in the Background section, the Utah Supreme Court reversed both of our decision......
  • State v. Sessions
    • United States
    • Court of Appeals of Utah
    • 27 Septiembre 2012
    ...We then concluded that trial counsel performed deficiently and presumed prejudice. See State v. King (King III), 2006 UT App 355, ¶ 16, 144 P.3d 222. The supreme court again reversed that decision in King IV, 2008 UT 54, 190 P.3d 1283, which is the focus of our discussion. 7. Sessions cites......
  • State v. King
    • United States
    • Supreme Court of Utah
    • 5 Agosto 2008
    ...The court of appeals then found that it could presume that the seating of the two suspect jurors prejudiced Mr. King. State v. King (King III), 2006 UT App 355, ¶ 16, 144 P.3d ¶ 2 We again have granted certiorari, this time to review whether the court of appeals erred when it presumed that ......
  • In re Adoption of K.C.J.
    • United States
    • Court of Appeals of Utah
    • 1 Mayo 2008
    ...has the procedural right to participate in "`the adversarial process that our system counts on to produce just results.'" See State v. King, 2006 UT App 355, ¶ 16, 144 P.3d 222 (citation omitted), cert. granted, 153 P.3d 185 (Utah 2007). Accordingly, we affirm the district court's order all......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT