State v. Robertson

• Decision Date: 06 October 2005
• Docket Number: No. 20040327-CA.,20040327-CA.
• Citation: 2005 UT App 419,122 P.3d 895
• Parties: STATE of Utah, Plaintiff and Appellee, v. Roy Don ROBERTSON, Defendant and Appellant.
• Court: Utah Supreme Court

122 P.3d 895

2005 UT App 419

STATE of Utah, Plaintiff and Appellee, v. Roy Don ROBERTSON, Defendant and Appellant.

No. 20040327-CA.

Court of Appeals of Utah.

October 6, 2005.

COPYRIGHT MATERIAL OMITTED

Samuel Bailey, Bailey & Torgenson PLLC, Price, for Appellant.

Mark L. Shurtleff, Attorney General's Office, and Erin Riley, Assistant Attorney General, Salt Lake City, for Appellee.

Before Judges BILLINGS, DAVIS, and THORNE.

OPINION

THORNE, Judge:

¶ 1 Roy Don Robertson appeals from his conviction for aggravated burglary, a first degree felony. See Utah Code Ann. § 76-6-203 (2003). We affirm.

BACKGROUND

¶ 2 At about one A.M. on January 31, 2004, Wayne King returned to his home to find Robertson on his enclosed and locked porch. King concluded that Robertson had entered the home, and subsequently the porch, through a window, because the window was open and the screen had been removed. King picked up a baseball bat and confronted Robertson. Robertson responded by standing and walking out of King's house. As Robertson left, King noticed that he was carrying a bag, which, due to the disarray King saw in the home, King believed might contain some of King's belongings. King called 911 to report the burglary, and then he ran out of the house to chase Robertson down. When he caught him, King again confronted Robertson and a fight ensued. During the fight, King noticed that Robertson was swinging at him with something "shiny," and King suspected that Robertson had a knife. King's face was cut during the fight, but he was able to gain the upper hand and subdue Robertson before the police arrived. Upon arresting Robertson, the police discovered an empty knife scabbard on his belt. They searched the area for the knife, but the ground was snow-covered and no knife was found.

¶ 3 Robertson was charged with aggravated burglary and was convicted by a jury in March 2004. During the trial, the State presented the testimonies of Mr. and Mrs. Kilcrease. The couple testified that they had seen a man who looked like Robertson walking through town on the day before the burglary. That man was carrying a bag and wearing a knife scabbard in which he carried a "pirate knife." Although Mr. Kilcrease was certain that Robertson was the man that they saw, Mrs. Kilcrease could only testify that he was similar. Following the presentation of the State's case, Robertson moved for both dismissal of the charges and for a directed verdict, both of which the trial court denied. He later renewed these motions, which were again denied. He now appeals his conviction for aggravated burglary.

ISSUES AND STANDARD OF REVIEW

¶ 4 Robertson asserts that the trial court erred in denying his for cause challenges to two members of the jury venire who were eventually seated as jurors. We will reverse a trial court's decision concerning a for cause challenge only if we determine the court has exceeded the bounds of its permitted range of discretion. See State v. Wach, 2001 UT 35,¶ 25, 24 P.3d 948.

¶ 5 Robertson also argues that his trial counsel was ineffective. "When, as in this case, the claim of ineffective assistance of counsel is raised for the first time on appeal, we resolve the issue as a matter of law." State v. Strain, 885 P.2d 810, 814 (Utah Ct.App.1994) (footnote omitted).

¶ 6 Finally, Robertson argues that the trial court erred in denying his motion for either a directed verdict or dismissal. "The grant or denial `of a motion to dismiss is a question of law [that] we review for correctness, giving no deference to the decision of the trial court.'" State v. Hamilton, 2003 UT 22, ¶ 17, 70 P.3d 111 (citations omitted) (quoting Krouse v. Bower, 2001 UT 28, ¶ 2, 20 P.3d 895).

ANALYSIS

¶ 7 Robertson argues that the trial court violated his right to a fair and unbiased jury when it denied his for cause challenges to two jurors.

To ascertain whether a new trial is warranted for failure to dismiss a prospective juror for cause, we apply a two-part test. First, we consider whether the trial court exceeded its discretion in failing to excuse the prospective juror for cause. Second, we assess whether the trial court's failure to strike the prospective juror actually prejudiced the party seeking the new trial.

Harding v. Bell, 2002 UT 108, ¶ 16, 57 P.3d 1093 (citing State v. Wach, 2001 UT 35, ¶ 24, 24 P.3d 948). However, even if the trial court erred, the supreme court has clearly stated that it is the defendant's duty to cure the error through the exercise of his peremptory challenges, and that the failure to do so constitutes a waiver of any objection to the trial court's action on appeal. See Wach, 2001 UT 35 at ¶ 36 & n. 3, 24 P.3d 948. In this context, a defendant cures the error by using some or all of his peremptory strikes to eliminate the challenged, but not struck, juror or jurors, and if he fails to do so he waives any objection to the trial court's failure to strike. See id. Assuming that the defendant has cured, we do not directly examine the trial court's alleged error, but instead we focus our attention on the jury that was seated and consider whether it was fair and unbiased. See id.¹

¶ 8 Robertson alleges that the trial court erred in denying his for cause challenges. Nonetheless, we do not address his contention because Robertson has failed to cure any potential error. After the trial court denied his challenges to jurors Everett Johns and Amy Rasmussen, Robertson had the opportunity to use his peremptory challenges to remove them. He chose instead to expend all of his challenges on other jurors, which resulted in Johns and Rasmussen being seated on the jury. Under the rule articulated in Wach, this clearly amounts to an affirmative waiver of his objections to these jurors, and we therefore reject Robertson's attempt to resurrect his objections on appeal.²

¶ 9 Robertson next asserts that trial counsel's performance was ineffective. To establish ineffective assistance of counsel, Robertson "`must show that trial counsel's performance was deficient in that it "fell below an objective standard of reasonableness," and that the deficient performance prejudiced the outcome of the trial.'" State v. Baker, 963 P.2d 801, 806-07 (Utah Ct.App.1998) (citations omitted). He "`must [also] "identify specific acts or omissions that fell outside the wide range of professional assistance and illustrate that, absent those acts or omissions, there is a `reasonable probability' of a more favorable result."'" State v. Simmons, 2000 UT App 190, ¶ 4, 5 P.3d 1228 (citations omitted). Finally, not only do we presume that counsel acted competently if we can articulate a rational basis for his actions, see State v. Tennyson, 850 P.2d 461, 468-69 (Utah Ct.App.1993) (stating "cases in various state and federal jurisdictions demonstrate that when trial counsel allows the seating of jurors, who upon initial voir dire inquiry appear biased, courts deny the ineffective assistance claim unless counsel's actions could not conceivably constitute legitimate trial tactics"), but "a claim of ineffective assistance of trial counsel premised on failure to challenge a juror for cause can succeed only if the juror was biased as a matter of law," Simmons, 2000 UT App 190 at ¶ 12, 5 P.3d 1228.

¶ 10 Robertson argues that trial counsel should have struck or further questioned three jurors: juror Allen Norton, who was hearing impaired, juror Charles Beal, whose brother-in-law is apparently employed in law enforcement, and juror Trevor Motte, who was the cousin of the State's witness Theresa Kilcrease.³ However, Robertson presents this court with nothing that would support a conclusion that any of these jurors were biased as a matter of law. Instead, he presents this court only with "numerous questions [that] counsel could have asked the jurors," Baker, 963 P.2d at 808, and fails to demonstrate how further inquiry along his suggested lines "would have altered the outcome of his trial," id. (quotations, citations, and alterations omitted). The trial court questioned each of these jurors as to their ability to be unbiased and to fairly evaluate the evidence, and the trial court, as well as trial counsel, were apparently satisfied with the jurors' responses.

¶ 11 Moreover, on appeal Robertson ignores certain realities that occur in the process of jury selection. Trial counsel had an opportunity to examine the juror questionnaires, each juror's body language and facial expressions, and the reactions that each juror had to the information that was presented to them. Counsel easily could have identified some factor present in any or all of these observations that led him to believe that the jurors challenged on appeal were well suited to serve on Robertson's jury.⁴ See, e.g., Simmons, 2000 UT App 190 at ¶ 16, 5 P.3d 1228 (stating parenthetically "`[w]e need not come to a conclusion that counsel, in fact, had a specific strategy in mind. Instead, we need only articulate some plausible strategic explanation for counsel's behavior'" (citation omitted)). This view is bolstered by counsel's decision to challenge some members of the venire, but not others. As we said in Simmons, "[w]e can infer from trial counsel's different treatment of these two prospective jurors that `trial counsel discerned some qualitative difference between the juror he challenged for cause and those he did not.'" Id. (citation and alterations omitted). Consequently, in the absence of our concluding that a juror was biased as a matter of law, we will not second-guess trial counsel's choices, and we decline to find counsel ineffective for his choices in juror selection.

¶ 12 Robertson also argues that counsel was ineffective in failing to request a limiting instruction concerning the testimony of the Kilcreases, who testified as witnesses for the State. Robertson is correct that under certain circumstances trial courts must give an instruction concerning the weaknesses inherent in eyewitness identification....