State v. Sessions

• Decision Date: 21 October 2014
• Docket Number: No. 20120975.,20120975.
• Citation: 772 Utah Adv. Rep. 44
• Parties: STATE of Utah, Respondent, v. Ronnie Cyril SESSIONS, Petitioner.
• Court: Utah Supreme Court

772 Utah Adv. Rep. 44

STATE of Utah, Respondent,

v.Ronnie Cyril SESSIONS, Petitioner.

No. 20120975.

Supreme Court of Utah.

Oct. 21, 2014.

Affirmed.

[342 P.3d 740]

Sean D. Reyes, Att'y Gen., Ryan D. Tenney, Asst. Att'y Gen., Salt Lake City, for respondent.

Joan C. Watt, Brittany D. Enniss, Salt Lake City, for petitioner.

Justice LEE authored the opinion of the Court, in which Chief Justice DURRANT, Associate Chief Justice NEHRING, Justice DURHAM, and Justice PARRISH joined.Justice LEE, opinion of the Court:

¶ 1 Ronnie Sessions was convicted of aggravated sexual assault and domestic violence in the presence of a child arising out of his attack on his wife in the presence of the couple's four-year-old daughter. At voir dire, counsel for Sessions used all five of his peremptory challenges on female members of the venire. When the prosecution objected, Sessions failed to give nondiscriminatory explanations for two of the strikes upon the trial court's request. The trial court then reinstated those two jurors but did not restore the two peremptory challenges Sessions used to strike them. On appeal, the court of appeals upheld Sessions's conviction on the ground that he failed to show that he was prejudiced by his attorney's allegedly deficient performance or by the trial court's decision to reinstate the two jurors.

¶ 2 Sessions challenges the court of appeals' decision, arguing that his counsel's performance was deficient and gives rise to a presumption of prejudice, and that the loss of two peremptory challenges was plain error. We disagree and thus affirm.

I

¶ 3 In March 2009, Sessions and the victim, his wife at the time, were living together with their three children, the victim's mother, and the victim's adult child from a previous relationship. Around this time, Sessions began

[342 P.3d 741]

to suspect his wife of infidelity and decided to confront her. An argument ensued, which ultimately escalated and became physical.

¶ 4 During the assault, with the couple's four-year-old daughter in the room, Sessions kicked the victim out of the couple's bed and began choking her. He then threatened to rape and kill her, forcibly removed her clothing, and sexually assaulted her by violently thrusting his fist into her vagina. Sessions then left the room and his wife called 911. The victim's adult son heard her screaming and came into the bedroom where he found her naked and bleeding on the floor.

¶ 5 The victim was examined by a sexual assault nurse later that night. The nurse found injuries indicative of attempted strangulation. She also discovered injuries consistent with the victim's account of Sessions sexually assaulting her with his fist.

¶ 6 Sessions was charged with one count of aggravated sexual assault and two counts of domestic violence in the presence of a child. During jury selection, juror 19 indicated that her niece had been sexually assaulted as a minor. She also noted that she had served as a juror in a criminal assault case fifteen years earlier. When asked if she could set aside her feelings and render a “true and correct” verdict, she indicated that she could. Neither Sessions nor the trial judge conducted any further inquiry, and Sessions did not challenge juror 19 for cause.

¶ 7 The trial judge then asked the potential jurors whether any of them “[felt] that the testimony of someone working in law enforcement is more or less believable than anybody else.” Juror 23 raised her hand, but no one inquired further or asked any other questions about the issue. Later, juror 23 also told the trial judge that she had seen pretrial publicity that may have been related to the case, but stated that she could be fair and impartial and that she could not be certain the publicity she saw concerned this case.

¶ 8 After striking eighteen potential jurors for cause, Sessions and the State passed on the remainder, including jurors 19 and 23. Each side was then allocated five peremptory challenges. Sessions used all five of his challenges on women, including jurors 19 and 23.

¶ 9 The State raised a Batson objection, asserting discrimination on the basis of gender in defense counsel's actions in using all of his peremptory challenges to strike women from the jury. The trial judge asked Sessions's counsel if he realized that he did not “have the ability to strike people based upon their gender,” and counsel answered, “I did not do that.” The trial judge then asked counsel to provide gender-neutral explanations for each strike. He did so for all but jurors 19 and 23.

¶ 10 As to juror 19, counsel told the trial judge that he had drawn “two arrows down” next to juror 19's name on his notes, but could not remember why. “Something she said” had bothered him, but he could not remember what it was and thus he struck her based on a “gut feeling.” Counsel had no explanation for striking juror 23. When subsequently pressed by the court, counsel appeared to concede that he was unaware of any legal prohibition on striking potential jurors on the basis of gender, but insisted he had not done so.

¶ 11 The trial court concluded that Sessions had challenged jurors 19 and 23 in a manner inconsistent with the equal protection standard recognized in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and stated that it would be willing to entertain a motion for mistrial or alternative relief. The State declined to request a mistrial, but suggested instead that the court reinstate jurors 19 and 23 to the panel. Counsel for Sessions did not object or ask the court to restore the two peremptory challenges he had lost. Jurors 19 and 23 were reinstated and ultimately sat on the jury, which convicted Sessions on all counts.

¶ 12 Sessions appealed, arguing that his trial counsel was ineffective for using his peremptory challenges in a discriminatory manner, for being unable to articulate nondiscriminatory reasons for striking jurors 19 and 23, and for failing to object to the trial court's remedy of reinstating the jurors. See State v. Sessions, 2012 UT App 273, ¶ 1, 287 P.3d 497. In addition, Sessions argued that

[342 P.3d 742]

that the loss of two peremptory challenges warranted a presumption of prejudice.

¶ 13 The court of appeals affirmed, holding that (a) the loss of two peremptory challenges did not warrant a presumption of prejudice, and (b) Sessions had not shown he was actually prejudiced by his counsel's allegedly deficient performance or by the trial court's alleged errors. See id. ¶ ¶ 23–35. Sessions filed a petition for certiorari, which we granted.

¶ 14 On certiorari, we review not the underlying decision of the district court, but the ultimate decision of the court of appeals—a decision that merits no deference in our analysis. See State v. Verde, 2012 UT 60, ¶ 13, 296 P.3d 673.

II

¶ 15 Because Sessions's objections were not preserved at trial, he proceeds under principles of ineffective assistance of counsel and plain error. See State v. Sessions, 2012 UT App 273, ¶¶ 13–14, 287 P.3d 497. On the ineffective assistance claim, Sessions challenges a range of trial counsel's actions in connection with the exercise of his peremptory challenges. In asserting plain error, Sessions assails the trial court's decision to reinstate jurors 19 and 23 and its failure to sua sponte restore the peremptory challenges used to strike them.

¶ 16 We affirm. First, we conclude that Sessions has largely failed to establish the objective deficiency of his counsel's performance, and in any event that he has not shown that any prejudice arose from any arguable deficiency or that there is a basis for a presumption of prejudice. Second, we hold that Sessions has failed to establish the elements of plain error.

A. Ineffective Assistance of Counsel

¶ 17 To prevail on his claim for ineffective assistance of counsel, Sessions has the burden of demonstrating (1) that his counsel rendered a demonstrably deficient performance that fell below an objective standard of reasonable professional judgment, and (2) that counsel's performance resulted in prejudice. See Strickland v. Washington, 466 U.S. 668, 691–92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Bundy v. Deland, 763 P.2d 803, 805–06 (Utah 1988) (restating and applying the Strickland test). Sessions has failed to carry his burden. For the most part, he has failed to demonstrate objectively deficient performance. And in any event, he has also failed to establish actual prejudice or any basis for presumed prejudice.

1. Deficient Performance

¶ 18 An attorney's performance is deficient under Strickland if it can be shown to have fallen “below an objective standard of reasonableness.” Nicholls v. State, 2009 UT 12, ¶ 37, 203 P.3d 976 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). This standard is met where it is established that “counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Id. (internal quotation marks omitted).

¶ 19 Sessions asserts four counts of deficient performance by his trial counsel: (1) not knowing that gender-based jury strikes are prohibited by law, (2) exercising the peremptory challenges in a discriminatory fashion, (3) failing to object to the loss of two challenges and not moving for a mistrial, and (4) failing to state a gender-neutral justification for striking jurors 19 and 23 and to take the notes necessary to be prepared to do so.

¶ 20 None of these assertions of deficiency is meritorious—save perhaps the last one. We hold that Sessions has failed to carry his burden of establishing objective deficiency on the first three counts. As to the fourth, we acknowledge the arguable merits of Sessions's claim but ultimately reject it based on a lack of proof of prejudice.

¶ 21 First, Sessions is right that there is some evidence that his counsel did not know that Batson had been extended to gender. When the trial judge pressed counsel on the matter, coun...