State v. Pharris

• Decision Date: 15 January 1993
• Docket Number: No. 910279-CA,910279-CA
• Parties: STATE of Utah, Plaintiff and Appellee, v. Frank E. PHARRIS, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 454

846 P.2d 454

STATE of Utah, Plaintiff and Appellee, v. Frank E. PHARRIS, Defendant and Appellant.

No. 910279-CA.

Court of Appeals of Utah.

Jan. 15, 1993.

Eric P. Swenson (argued), Monticello, for defendant and appellant.

Jan Graham, State Atty. Gen., Christine F. Soltis (argued), Salt Lake City, for plaintiff and appellee.

Before BILLINGS, GREENWOOD and ORME, JJ.

OPINION

GREENWOOD, Judge:

Defendant Frank E. Pharris appeals the jury verdict finding him guilty of injury to a jail in violation of Utah Code Annotated section 76-8-418 (1990). On appeal, defendant contends that (1) the State violated his constitutional rights by improperly using peremptory challenges to prevent Native Americans from being impaneled on the jury deciding his case, (2) the statute under which he was charged is unconstitutionally vague, and (3) the trial court erred in refusing to instruct the jury on the lesser included offense of criminal mischief, Utah Code Annotated section 76-6-106 (1990). ¹ We reverse in part and affirm in part.

BACKGROUND

Defendant was an inmate in the San Juan County Jail on November 22, 1990, when he and a fellow prisoner created a destructive disturbance in the jail. During that afternoon, because defendant and co-defendant ² had become intoxicated, jail officials placed each of them in isolation. Just before 6:00 p.m., a guard heard defendant either jumping or banging on his bunk. When he looked into defendant's cell, the guard saw him repeatedly flushing a clogged toilet, causing gallons of water to pour out on the floor. Defendant was yelling, ranting, and making obscene gestures.

The guard called for assistance and turned off the water to defendant's cell. He then noticed that water was pouring down from co-defendant's isolation cell directly above the cell occupied by defendant. The water from the two toilets combined to flood both the cell and the day room outside the cell with between one-half and three-fourths inches of water. When the guards returned from shutting off the water to co-defendant's cell, defendant was banging his fist against the light fixture in his cell, displacing, but not breaking its bracket. Upon removing defendant from the cell, the guards discovered that the welds holding up the bunk were broken. After the fifteen minute incident, defendant's cell was unusable, a welder had to repair the bunk, a painter had to repaint the wall, and maintenance had to remove about eighty-five gallons of water from the carpet of the day room.

The water seeped into the basement where it soaked the jail's backup generator, causing it to smoke. Testimony about damage to the generator was conflicting. At the preliminary hearing, the officer in charge of the jail during the incident testified that the generator was in working order after the incident At trial, however, the maintenance man who inspected and worked. on the generator testified that the generator had to be turned off to dry and that the next day he discovered that the generator's automatic clock had broken. He testified that turning off the generator for repair left the jail without backup power for twenty-four hours.

As a result of this incident, both defendant and co-defendant were charged and later convicted of a felony, injuring a jail. On appeal, defendant does not dispute the facts so much as he challenges the procedure allowing these facts to become a basis for his conviction.

Both during the trial and on appeal, defendant challenged the prosecutor's use of peremptory strikes to prevent Native Americans from serving on the jury which would hear his case. After the trial court removed several potential jurors from the venire for cause, five of the remaining potential jurors were Native Americans. The prosecutor questioned two of those Native Americans during voir dire about possible familial relationships with individuals recently prosecuted by the County Attorney's office. The first, Ms. Bedonie, related that she was a close family friend of the person about whom she was asked, but also stated that she could put this relationship aside to decide the case before her. The second, Ms. Gray, stated that she did not know the individual named by the prosecutor although he did have her same married name and came from the same general vicinity of the state as she. The prosecutor then used the first three of his four peremptory challenges to strike Native Americans, including the two women questioned during voir dire. The jury that was later impaneled included the two remaining Native Americans among its eight members.

Near the end of the jury selection process and before the trial court impaneled the jury, both defendant's and co-defendant's attorneys requested that the prosecutor provide race neutral explanations for challenging the Native Americans. The trial court overruled defendants' objection to the petit jury, stating that the prosecutor "need not respond in any fashion to the inference or challenges." The prosecutor, however, immediately stated that he was willing to go on the record with regard to two of the challenges he had made. He explained that he based the challenges of both Ms. Gray and Ms. Bedonie on his suspicion, aroused during earlier questioning, that they might be related to individuals that his department had prosecuted. When defendant's counsel asked for an explanation for the prosecutor's challenge of the third Native American, the court foreclosed further discussion on the matter.

Defendant renewed his objections in a motion to arrest the judgment following defendant's conviction, at which time he submitted an affidavit providing statistics contrasting the 43.57% Native American population of the county with the 25% Native Americans impaneled in the jury. When the trial court denied defendant's motion to arrest the judgment, defendant appealed.

DISCRIMINATION IN JURY SELECTION

On constitutional grounds, defendant challenges the selection process through which the jury was impaneled. Defendant claims that the trial court erred in refusing to require the prosecutor to defend his peremptory challenges of Native Americans. ³ The State counters this challenge by contending that the trial court's insistence that the prosecution need not respond to defendant's challenge was an implicit ruling that defendant had not made out the necessary prima facie case of discrimination. The State asserts that the proper issue before this court is whether defendant had established a prima facie case "such that the State should be compelled to respond to rebut the presumption." While we agree with the State's statement of this issue, we disagree with both its analysis of the trial court's response and with the trial court's conclusion.

Standard of Review

The trial court's conclusion as to whether or not a prima facie case was established is a legal determination which we review for correctness, according it no particular deference. See State v. Crowder, 114 Utah 202, 197 P.2d 917, 921 (1948); Roosevelt City v. Nebeker, 815 P.2d 738, 740 (Utah App.1991). The factual findings of the trial court relevant to allegedly discriminatory peremptory challenges merit deference on appeal and will be set aside only if they are clearly erroneous. State v. Cantu, 778 P.2d 517, 518 (Utah 1989) (Cantu II ); State v. Harrison, 805 P.2d 769, 778 (Utah App.), cert. denied, 817 P.2d 327 (Utah 1991). This court, however, will review the sufficiency of the trial court's findings of fact for correctness. See State v. Ramirez, 817 P.2d 774, 782 (Utah 1991). If the trial court fails to make adequate findings on the issue of discrimination in peremptory challenges after appropriate objection, the appeals court must remand the case to the trial court for further proceedings. See Batson v. Kentucky, 476 U.S. 79, 100, 106 S.Ct. 1712, 1725, 90 L.Ed.2d 69 (1986); State v. Cantu, 750 P.2d 591, 597 (Utah 1988) (Cantu I ).

Inapplicability of Harmless Error Analysis

Both parties in this case agree that if the State's peremptory challenges were purposefully discriminatory, defendant's conviction must be reversed without regard to the harmlessness of the constitutional error. This stipulation is consistent with the directive in Batson that if a court finds unrebutted, purposeful discrimination, "precedents require that [a] petitioner's conviction be reversed." Batson, 476 U.S. at 100, 106 S.Ct. at 1725. Although the Supreme Court did not expressly negate the applicability of harmless error analysis in the Batson text, Justice Blackmun stated, in a concurrence in a later opinion, that Batson exemplified one of the categories of constitutional error to which the Supreme Court has refused to apply a harmless error analysis. Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 1099, 117 L.Ed.2d 309 (1992) (Blackmun J., concurring). Justice Blackmun's statement is consistent with language in Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987), in which the Court discussed "the constitutional right to an impartial jury" and the importance of the impartial adjudicator "to the very integrity of the legal system." Gray, 481 U.S. at 668, 107 S.Ct. at 2057 (negating harmless error analysis in reviewing exclusion for cause of an otherwise qualified juror because of opposition to the death penalty). "We have recognized that 'some constitutional rights [are] so basic to a fair trial that their infraction can never be treated as harmless error.' The right to an impartial adjudicator, be it judge or jury, is such a right." Id. (quoting Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967)). Considering Batson in light of this language persuades us that a harmless error analysis is inappropriate for reviewing allegations of discrimination in jury selection, despite contrary language in Utah cases. See Cantu I, 750 P.2d at 597; Harrison, 805 P.2d at 780 (both holding that a "harmless beyond a reasonable doubt"...