State v. Millett
| Decision Date | 02 February 2012 |
| Docket Number | No. 20090400–CA.,20090400–CA. |
| Citation | 2012 UT App 31,701 Utah Adv. Rep. 20,271 P.3d 178 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Shane L. MILLETT, Defendant and Appellant. |
| Court | Utah Court of Appeals |
OPINION TEXT STARTS HERE
Margaret P. Lindsay and Douglas J. Thompson, Provo, for Appellant.
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee.
Before Judges McHUGH, ROTH, and CHRISTIANSEN.
¶ 1 Defendant Shane L. Millett appeals his convictions for sodomy on a child, see Utah Code Ann. § 76–5–403.1(1)–(2) (2008), and aggravated sexual abuse of a child, see id. § 76–5–404.1(4)–(5), both first degree felonies, arguing that he is entitled to a new trial because an empaneled juror withheld material information in response to questions asked during voir dire, which information, if disclosed, would have supported a valid basis to challenge the juror for cause. We reverse and remand for a new trial.
¶ 2 In 2005, Millett was accused of sexually abusing his four-year-old niece and was charged with aggravated sexual abuse of a child and sodomy on a child. Millett had previously been convicted of attempted sexual abuse of a child in 1997, and he was therefore required to register as a sex offender. See Utah Code Ann. § 77–27–21.5. In registering as a sex offender, Millett was required to provide, among other information, his name, address, and a current photograph; this information and a description of the crime for which he had been convicted were made accessible on a public website. See id. § 77–27–21.5(12)–(13). When he registered as required, Millett indicated that he resided at an address in the city of Orem in Utah County. However, during the investigation of the offenses at issue here, it was discovered that Millett was also residing at an address in American Fork, also in Utah County. Because he had failed to register the American Fork address, Millett was also charged with failure to register as a sex offender. See id. § 77–27–21.5(12)(b) (); id. § 77–27–21.5(14)(a) (). The State and Millett stipulated to the severance of the failure to register offense from the aggravated sexual abuse of a child and sodomy on a child offenses for trial “to avoid the possibility of prejudicing the jury” by disclosing that Millett had a prior conviction for a sexual offense.1 See id. § 77–8a–1(4)(a) ().
¶ 3 Nonetheless, during Millett's trial for the aggravated sexual abuse of a child and sodomy on a child offenses in October 2006, the State moved to admit evidence of Millett's prior conviction for sexual abuse. In support of its motion, the State argued that evidence of Millett's prior conviction was necessary to rebut certain evidence and argument it anticipated from the defense and to clarify statements Millett had made to law enforcement to explain why he thought his niece would accuse him of sexual abuse. The trial court denied the State's motion because, among other reasons, it determined that evidence of Millett's prior conviction for sexual abuse would be inadmissible under rules 403 and 404(b) of the Utah Rules of Evidence, specifically concluding that “the prejudice” caused by such evidence “would clearly outweigh the probativeness of that information.” See Utah R. Evid. 404(b) (); id. R. 403 ().
¶ 4 At trial, the court conducted an extensive voir dire as part of the jury selection process. Near the beginning of the voir dire, Millett was introduced to the prospective jurors and identified as the defendant. The trial court advised the members of the venire that Millett was charged with sodomy on a child and aggravated sexual abuse of a child. Millett remained present in the courtroom during the entire voir dire process.
¶ 5 As voir dire proceeded, the prospective jurors were asked questions designed to determine whether they were familiar with the facts of the case or the persons involved. They were also asked a series of questions designed to uncover any attitudes or biases each might have that could influence his or her ability to be an impartial, unbiased decision-maker who would try the case on the merits. Among the questions posed to the panel, the prospective jurors were asked by the court,
If chosen as a juror would you be will[ing] to try this case solely upon the evidence provided by the witnesses appearing before you and any papers or physical items admitted as evidence?
[D]o any of you have any social, religious, neighborly, paternal, or any other such acquaintance with any of the [parties or witnesses that were introduced to you?]
[Do] you have any knowledge of the facts involved or have [you] formed an opinion with respect to those?
[Is] there ... a reason that you know best why you could not try this case fairly and impartially on the evidence and without bias or prejudice for or against [either] party?
Also during voir dire, Millett's defense counsel introduced himself to the venire, explained that he represented Millett, and stated, as the trial court had previously explained, that Millett “is accused of sexual abuse.” Millett's counsel told the venire that he “noted when [the charges were] read to you that some[ ] of you raised your eyebrows and made some body gestures of some fashion.” Millett's counsel thus asked,
Is there anything, and recognizing [that Millett] is entitled to a fair trial and [that] he is presumed to be innocent of this, [are] there any concerns you have about sitting on a trial of this crime or this nature o[f] crime that you'd like to discuss with the judge or point out publicly here?
A member of the venire, Mr. Smith, did not respond affirmatively to any of these questions. Mr. Smith was not subject to any challenge for cause or a peremptory challenge and was seated on the jury and ultimately selected as the jury foreperson.
¶ 6 Millett's trial lasted for two days. Shortly after deliberations began, the trial court received a note from the jury that stated,
One of juror members has heard [Millett's] name before on sex registry. Not sure if it is him, but name sounds familiar. Came up in discussion, but no discussion made further, however, the subject has come up. Do we proceed, again it isn't in play or consideration on our decision.
The juror who thought he recognized Millett's name from the sex offender registry was Juror Smith, both the jury foreperson as well as the author of the note. Juror Smith was brought into chambers and questioned about how he was familiar with Millett's name. Juror Smith explained that he had daughters and was “[m]aybe ... a little over paranoid” about sex offenders, so he kept a “very updated list” of registered sex offenders in Utah County. He explained that he “thought [he] recognized the name before online somewhere on a registry” but stated that he “didn't do any research.” Juror Smith said he brought this up because he wanted to “get this cleared” before proceeding with deliberations. He also explained to the trial court that he had told the other members of the jury that he thought he recognized Millett's name from a sex offender registry, but, according to Juror Smith, the jury decided to stop deliberations pending review by the court and agreed that this information “wouldn't come into play in the discussion in the decision making.” The court sent Juror Smith back to the jury room, telling him that the jury was not to discuss the matter or deliberate further until it received instruction from the court. The trial court also told Juror Smith that “[i]n this case there's no evidence at all that ... Millett's on any registry.” No other member of the jury was questioned.
¶ 7 Millett immediately moved for a mistrial, arguing that because Juror Smith had recognized him from the sex offender registry and shared that information with the rest of the jurors, the jury had received inadmissible, prejudicial information about Millett's prior conviction for sexual abuse. The trial court denied the motion, reasoning that because Juror Smith was uncertain about whether he had seen Millett's name on the sex offender registry, any potential prejudice caused by the extraneous information could be remedied with a curative jury instruction. The trial court then crafted such an instruction, which was given to the jury:
As you know, many people have the same or similar name as other people. If you did see a name similar to [Millett]'s on a registry in the past it has no bearing in this case because there is no evidence of [Millett] being or ever having been on any registry. Accordingly, you will disregard any such thought or suspicion in reaching your verdict.
Thereafter, the jury resumed its deliberations and found Millett guilty of both offenses.
¶ 8 Millett subsequently moved for a new trial under rule 24 of the Utah Rules of Criminal Procedure. See generally Utah R.Crim. P. 24(a) (). In support of his motion, Millett argued that he was entitled to a new trial due to juror misconduct that had resulted in the jury receiving inadmissible and prejudicial extraneous information. Millett contended that the information known to Juror Smith and communicated to the jury about Millett's status as a registered sex offender was the...
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