State v. Moton

• Decision Date: 20 January 1988
• Docket Number: No. 20806,20806
• Parties: STATE of Utah, Plaintiff and Respondent, v. Irvin MOTON, Defendant and Appellant.
• Court: Utah Supreme Court

Page 639

749 P.2d 639

STATE of Utah, Plaintiff and Respondent, v. Irvin MOTON, Defendant and Appellant.

No. 20806.

Supreme Court of Utah.

Jan. 20, 1988.

Edward K. Brass, Salt Lake City, for defendant and appellant.

David L. Wilkinson, David B. Thompson, Salt Lake City, for plaintiff and respondent.

HOWE, Justice:

Defendant Irvin Moton appeals his convictions of sodomy upon a child, a first degree felony, and sexual abuse of a child, a second degree felony. He contends that he was denied a fair trial because the trial court did not excuse a biased potential juror for cause, that he received inadequate assistance of counsel at trial, and that the trial court improperly restricted his right to confront and cross-examine a witness against him.

During the voir dire of the jury panel which had been called to hear the case, the trial judge asked the prospective jurors whether they believed the mandatory penalty of a five-, ten-, or fifteen-year prison term for sodomy upon a child and the five-year-to-life penalty for sexual abuse of a child were "not severe enough." He then asked those prospective jurors who had responded affirmatively to either question whether they believed their attitudes toward the penalties for the two crimes involved would interfere with their ability to fairly determine defendant's guilt or innocence. Two potential jurors answered "no"; two (one of whom defendant argues should have been dismissed for cause) answered, "I don't think so"; and two replied that their feelings about penalties might influence their decision. The latter two individuals were excused for cause.

The trial judge continued with the voir dire, asking several questions, including the jurors' prior experience with sexual abuse cases, possible racial prejudice, prior knowledge of the parties involved in the trial, their family and employment backgrounds, and whether they considered themselves capable of giving defendant a fair trial.

Finally, the trial judge permitted counsel for defendant and the State to ask the prospective jurors questions. Defense counsel asked only one question, whether the panel had prior involvement with special education programs. The subject of penalties for the crimes involved was not raised by either side. Both the State and the defense then expressly passed the jury for cause. By peremptory challenges, the State removed one of the prospective jurors who did not think the penalties would affect his decision in determining guilt or innocence, and defense counsel removed the other prospective juror.

In the course of the trial, the ten-year-old victim of the alleged sexual misconduct was called as a witness for the State. On direct examination, she testified that she understood that it was wrong to lie and promised that her testimony would be the truth. She admitted that she had lied on other occasions unrelated to the instant case. She then testified that on December 24, 1983, defendant entered her bedroom, requested that she face the wall while standing on the bunkbed ladder, and began licking her genital area. He then offered her five dollars to lick his genitals, which she refused to do. She further testified that on January 4, 1984, defendant approached her while she was in the bathtub and began sucking her breast and touching her genitals.

On cross-examination, defense counsel was permitted to ask the victim if she had "danced in front of [defendant] without any clothes on." She replied that she did not remember. She did admit that she knew a lot about sex and, in fact, knew all about sexual anatomy and understood the act of fellatio. Defense counsel then attempted to question her about her prior sexual experiences. Repeated objections from the State were sustained by the trial court. At that point, the jury was excused in order to allow defense counsel to argue for admission of the excluded testimony and to make a proffer of what that testimony would show. Defense counsel indicated that the line of questioning she sought to pursue would reveal that the victim had a "propensity to become involved in sexual kinds of things" and that the victim had a "propensity to lie about this sort of thing, and, in fact, that [she was lying in the instant case, fabricating the] sexual experience for attention."

The trial court determined that the child's prior sexual activities were immaterial. It ruled that defense counsel could not question the child about specific instances when she had observed sexual activities, because it had already been established that the child had a great deal of knowledge about sexual matters. However, the court allowed defense counsel to question the victim about prior untruthful statements, including those relating to sexual activities.

The jury returned to the courtroom and the trial proceeded. Defense counsel questioned the victim about prior instances when she had lied, including an instance when she had lied about a man's kissing her. In each case, the victim admitted that she had in fact lied. She further stated that she could not remember saying she had a sexual encounter with one of her friends, but admitted that she had been bragging to her friends and her relatives about the instant case and that she did not like defendant.

Defense counsel called the victim's aunt as a witness. She admitted that defendant had been her boyfriend. She further testified that the victim had a reputation for telling lies and had reported having sexual relations with one of her friends at school. Defendant took the stand and denied committing the offenses charged.

I.

The brilliance of the adversarial system is that each side tries to select a jury which is most favorable to its position. Thus, each side shows its best profile, and justice sees truth full face. Defendant maintains that the trial court denied him the opportunity to demonstrate his best profile by failing to further question a prospective juror about her opinions concerning the penalties for sodomy upon a child and sexual abuse of a child and by failing to excuse her for cause, despite defense counsel's failure to request that she be excused. We disagree.

Procedurally, defendant's claim that it was error for the trial court to fail to excuse a prospective juror for cause, despite defense counsel's failure to request that she be excused, is in direct contradiction to Utah law. Rule 12(d) of the Utah Rules of Criminal Procedure states:

Failure of the defendant to timely raise defenses or objections or to make requests which must be made prior to trial or at the time set by the court shall constitute waiver thereof....

In State v. Miller, 674 P.2d 130 (Utah 1983), we stated: "Counsel neither objected, reminded the judge of the oversight, made a new request, nor asked permission personally to voir dire the jury under U.C.A., 1953, § 77-35-18(b). Such failure effectively waived the error under U.C.A., 1953, § 77-35-12(d)...." Id. at 131 (footnote omitted).

The cases that defendant relies upon are inapposite to the case at bar. In both State v. Hewitt, 689 P.2d 22, 25 (Utah 1984), and State v. Brooks, 631 P.2d 878, 883 (Utah 1981), defense counsel made motion to dismiss potential jurors for cause and the trial courts erroneously denied the motions. Defendant's failure to request that the prospective juror be dismissed for cause or to explore the topic of her alleged bias, especially when defendant was expressly given an opportunity to question the panel and to raise any challenges for cause, constitutes a waiver of any error attributable to the trial court's failure to do so of its own accord.

On the merits of the question, it is well established that it is prejudicial error to compel a party to exercise a peremptory challenge to remove a venireman who should have been excused for cause after the venireman expressed bias and concern about whether he could be impartial. State v. Malmrose, 649 P.2d 56 (Utah 1982); Jenkins v. Parrish, 627 P.2d 533 (Utah 1981); State v. Moore, 562 P.2d 629 (Utah 1977). Only "strong and deep impressions" on the part of a venireman, however, serve as a basis for disqualification. State v. Bailey, 605 P.2d 765, 767 (Utah 1980) (citing Reynolds v. United States, 98 U.S. (8 Otto) 145, 25 L.Ed. 244 (1878) (quoting Chief Justice Marshall in the trial of Aaron Burr)). Rule 18(e)(13) and (14) of the Utah Rules of Criminal Procedure provides occasions when a prospective juror may be excused for cause due to bias. Rule 18(e)(13) states that a challenge for cause may be granted if the potential juror has "formed or expressed an unqualified opinion or belief as to whether the defendant is guilty or not guilty of the offense charged." Rule 18(e)(14) provides that even where actual bias is not shown, a potential juror may be excused for cause if "a state of mind exists on the part of the juror with reference to the cause, or to either party, which will prevent him from acting impartially and without prejudice to the substantial rights of the party challenging." In State v. Brooks, 631 P.2d 878 (Utah 1981), we held:

[B]ased on the juror's expressed feelings, attitudes, and opinions, the trial court must determine by a process of logic and reason, based upon common experience, whether the juror can stand in attitude of indifference between the state and the accused.

Id. at 884. The trial court has traditionally been given considerable latitude as to the manner and the form of conducting the voir dire examination and is only restricted in that discretion from committing prejudicial error. Utah State Road Commission v. Marriott, 21 Utah 2d 238, 444 P.2d 57 (1968).

Our review of the transcript before us reveals that the trial court did not abuse its discretion in failing to excuse this prospective juror for cause. The prospective juror expressed only her belief that the penalties were too lenient; she further stated that she did not think that that opinion would have any bearing on her ability to...