State v. Reed, 990289.
| Decision Date | 18 August 2000 |
| Docket Number | No. 990289.,990289. |
| Citation | 2000 UT 68,8 P.3d 1025 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Gary Owen REED, Defendant and Appellant. |
| Court | Utah Supreme Court |
Jan Graham, Att'y Gen., Christine F. Soltis, Asst. Att'y Gen., Susan Hunt, Margaret Olson, Salt Lake City, for plaintiff.
Patrick L. Anderson, Salt Lake City, for defendant.
¶ 1 Gary Owen Reed appeals from a final order denying a motion for a new trial and from convictions of two counts of sodomy on a child, a first degree felony, and one count of aggravated sexual abuse of a child, also a first degree felony. Reed raises four claims of error: (1) inadequate jury voir dire; (2) prosecutorial misconduct; (3) failure to bifurcate the trial proceedings; and (4) an improper elements instruction to the jury. We affirm.
¶ 2 Beginning in the fall of 1992, Reed, who was in his late twenties, befriended the victim, a ten-year-old child in the fifth grade. Reed quickly developed an unusually close attachment to the victim and began visiting him frequently at his home and taking him on outings. The victim's mother objected to Reed's relationship with her son, and confronted Reed on numerous occasions—some one hundred times—which often resulted in shouting matches, shoving bouts, and mutual threats. These confrontations on one occasion led the mother to drive her car into Reed's motorcycle, and on another led the victim's stepfather to punch Reed in the face, breaking his nose. After each confrontation, however, Reed insisted that he would continue seeing the victim because the victim was his "best friend" and they had "a great time together."
¶3 As the mother's opposition grew, Reed began visiting the victim when she was not at home. Reed also took the victim away from the home, to such places as Lagoon, the 49th Street Galleria, the Sports Park, parking lots, Reed's house, and the private apartment of a friend. Reed also took the victim to such places during school hours. This was all done without the mother's knowledge or permission. During this period, Reed gave the victim gifts, money, and even marijuana, and also let the victim drive his van on many occasions. When the victim's family moved from Salt Lake City to Magna, Reed continued to pursue the victim and visited him often.
¶4 Throughout this period, the victim's mother continuously tried to end Reed's relationship with her son. She spoke to all of her son's teachers and to the police detective assigned to the school, who would call her if they saw Reed's van at the school. She also talked to Reed's roommates and his employer, and even tried to talk to his mother.
¶ 5 Reed displayed an obsessive disposition toward the victim, often saying that he loved him and would always be with him, and that he always wanted to be able to see him and never wanted to be unable to talk to him. Reed even devised a system of communication in which he would use a walkie-talkie to contact the victim.
¶6 From very early in the relationship, Reed began having sexual contact with the victim, the first incident occurring in the fall of 1992. These acts consisted of Reed's fondling the victim's genitalia and anal area, performing fellatio on the victim, and engaging in sodomy. The sex acts, some twenty to thirty incidents, began when the victim was ten years old and in the fifth grade and continued over three and one-half years, ending when the victim was thirteen years old and in the seventh grade. The victim testified that these sex acts made him feel "weird," "uncomfortable," and "gross."
¶7 During the first year after this relationship began, the victim started to get into trouble with the authorities. He was referred to juvenile court and placed on probation for such things as stealing, running away, and other unruly behavior. As a condition of his probation, the victim was barred from seeing Reed. Despite this, Reed continued to pursue a relationship with the victim. Finally, in May of 1995, the victim was placed in detention after being caught with Reed during school hours. It was during this detention that the victim first disclosed the sexual nature of Reed's three-and-a-half-year relationship with him.
¶ 8 Reed's first point on appeal is that the trial court abused its discretion by failing to conduct adequate voir dire examination of the jury. Specifically, Reed argues that the trial court failed to ask a requested follow-up question to particular jurors who had personally known a victim of sexual abuse. The exact question defense counsel requested was:
[W]hether they [the jurors] would tend to believe the victim over the person accused of the crime, simply because of their association with people that they know that have been accused [sic] in the past.
¶ 9 According to Reed, this question was necessary because jurors who knew abuse victims might be predisposed to believe the alleged victim rather than the accused. Reed argues that not asking the requested follow-up question was an abuse of discretion because no other question during voir dire adequately addressed this issue.
¶ 10 Our analysis is governed by State v. Piansiaksone, 954 P.2d 861 (Utah 1998), in which we held: "`Whether the trial court abused its discretion [in determining the scope of voir dire] turns on whether, considering the totality of the questioning, counsel was afforded an adequate opportunity to gain the information necessary to evaluate jurors.'" Id. at 868 (quoting State v. Bishop, 753 P.2d 439, 448 (Utah 1988)); see also State v. Worthen, 765 P.2d 839, 844-45 (Utah 1988)
.
¶ 11 We further stated in Piansiaksone that trial courts should liberally conduct voir dire proceedings "`in a way which not only meets constitutional requirements, but also enables litigants and their counsel to intelligently exercise peremptory challenges and which attempts, as much as possible, to eliminate bias and prejudice from the trial proceedings.'" Piansiaksone, 954 P.2d at 867 (quoting State v. James, 819 P.2d 781, 798 (Utah 1991)); see also State v. Taylor, 664 P.2d 439, 447 (Utah 1983)
. We also indicated that "`failure to question jurors concerning issues in any certain way desired by counsel or to ask any specific question desired by counsel does not rise to the level of a constitutional violation so long as the relevant areas of bias have been covered.'" Piansiaksone, 954 P.2d at 867 (quoting James, 819 P.2d at 798).
¶ 12 Viewing the totality of the questioning in this case, we conclude that the trial court adequately covered, either directly or indirectly, the area of potential bias identified by Reed. The trial court's first pre-trial instruction to the prospective jurors informed them that this case involved two counts of sodomy upon a child and one count of aggravated sexual abuse of a child. Thus, the prospective jurors knew at the outset that the victim in this case was a child. The trial court subsequently asked the prospective jurors whether they would automatically believe a child witness over an adult, or vice versa. The trial court also asked the prospective jurors whether they would accord proper credibility to the testimony of a witness, without regard to employment, age, or circumstances.
¶ 13 Furthermore, the trial court, in response to defense counsel's request, asked again whether the jurors would believe the testimony of a child simply because he or she was a child. Although the trial court did not use the exact terms defense counsel proposed, namely the "victim" and the "person accused," in the context of this case the trial court's questioning clearly addressed Reed's concerns for potential bias. As was plainly known to all, the alleged victim was a child; therefore, asking the questions as the trial court did was sufficient to reveal any bias the jurors would have had in believing a "victim" rather than the "person accused."
¶ 14 Additionally, Reed's reliance on State v. Saunders, 1999 UT 59, 992 P.2d 951, is misplaced. In Saunders, we noted that a problem in some child sex abuse cases is that "[s]ome are inclined to accept without any hesitation a child's accusation of abuse, even in circumstances where false charges of abuse are known to occur." Id. at ¶ 46. In the instant case, the trial court thoroughly questioned the potential jurors regarding the issue of whether they would be inclined to believe the alleged child victim over the alleged adult perpetrator. Therefore, the concerns noted in Saunders were adequately addressed during the examination of the potential jurors.
¶ 15 We are satisfied that the trial court properly probed the jurors for potential bias, allowing counsel to exercise informed peremptory challenges. The trial court did not restrict counsel in pursuing further questioning, and indeed invited counsel to submit additional questions. Defense counsel, therefore, had ample opportunity to engage in follow-up questions. Instead, defense counsel passed the jury panel for cause and was apparently satisfied with the voir dire and the trial court's management of it.
¶ 16 Reed contends that the prosecutor elicited inadmissable testimony that improperly influenced the jury's verdict. The exchange in question occurred during the prosecutor's examination of the detective who originally questioned Reed:
(Emphasis added.)
¶ 17 Reed argues that the detective's reference to the Office of Adult Parole and Probation likely caused the jurors to infer that...
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