State v. Woolley
| Decision Date | 10 April 1991 |
| Docket Number | No. 900012-CA,900012-CA |
| Citation | 810 P.2d 440 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Paul Edwin WOOLLEY, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Charles F. Loyd, Jr. and Joan C. Watt (argued), Salt Lake Legal Defenders Ass'n, Salt Lake City, for defendant and appellant.
R. Paul Van Dam, State Atty. Gen. and Dan R. Larsen (argued), Asst. Atty. Gen., Governmental Affairs, Salt Lake City, for plaintiff and appellee.
Before BENCH, BILLINGS and GREENWOOD, JJ.
Defendant Paul Edwin Woolley appeals from his conviction of two counts of forgery, a third-degree felony, in violation of Utah Code Ann. § 76-6-501 (1989). Defendant claims the trial court committed reversible error by failing either to remove a juror for cause or to ask questions to probe his potential bias when the juror admitted he had been a victim of forgery. We reverse and remand for a new trial.
During voir dire of potential jurors in defendant's trial, the court, at the request of defendant's counsel, asked: "Are there those among you ..., members of the panel, who have yourselves been the victim of a forgery or a crime involving deception or fraud?" Three potential jurors, Mark Hoyt, Chris VanLeeuwen, and James Tyler, responded affirmatively. Hoyt explained that his wallet was taken when he was in California and that his credit card was used. VanLeeuwen related that when he was in Brazil, a thief stole his wallet and wrote about $5,000 worth of checks on his account. Similarly, Tyler explained that some of his checks were stolen in 1961 when he lived in Los Angeles and that someone had forged his signature on some of those checks.
Following these responses, the trial court asked Hoyt, VanLeeuwen, and Tyler, as a group, one general follow-up question:
Those three of you who have responded, recognizing that this is a different time and place and circumstance, would that experience, having been the victim of that type of a crime, affect your ability to be fair and impartial in this case, that is, would you be unable to set aside that experience and hear the evidence in this case and rule on the evidence based upon what you hear and the credibility of the witnesses? If you would not be able to do so, I want you to raise your hand.
None of those questioned raised his hand.
At the conclusion of voir dire, the trial court requested counsel to pass the jury for cause. The defense refused and requested a sidebar conference. During the conference, defense counsel asked the court to remove Hoyt, Tyler, and VanLeeuwen because of their admissions to having been victims of similar crimes. The trial judge initially struck all three of the challenged jurors for cause. 1 Subsequently Defendant was convicted on both counts of forgery and was sentenced to two concurrent terms of zero to five years. Defendant argues on appeal that the court committed reversible error in reinstating VanLeeuwen.
however, the court reinstated juror VanLeeuwen, explaining its action by stating that VanLeeuwen need not be removed because the forgery occurred in a foreign country. Defense counsel objected to the reinstatement of VanLeeuwen and subsequently removed VanLeeuwen by peremptory challenge.
A motion to dismiss a prospective juror for cause is within the sound discretion of the trial court. When reviewing such a ruling, we reverse only if the trial court has abused its discretion. State v. Gotschall, 782 P.2d 459, 462 (Utah 1989) (citing State v. Larson, 775 P.2d 415, 419 (Utah 1989); State v. Verde, 770 P.2d 116, 120 (Utah 1989)). 2 The Utah Supreme Court has noted, however, that the exercise of the trial court's discretion in selecting a fair and impartial jury must be viewed "in light of the fact that it is a simple matter to obviate any problem of bias simply by excusing the prospective juror and selecting another." Jenkins v. Parrish, 627 P.2d 533, 536 (Utah 1981). 3
The Utah Supreme Court has consistently emphasized that "it is [the trial judge's] duty to see that the constitutional right of an accused to an impartial jury is safeguarded," State v. Dixon, 560 P.2d 318, 319-20 (Utah 1977), and has reversed criminal convictions based solely on the appearance that such right may have been jeopardized. 4 Accordingly, trial courts must adequately probe a juror's potential bias when that juror's responses or other facts suggest a bias. The court's discretion is properly exercised when deciding whether to dismiss a juror for cause only after this investigation takes place.
A party is entitled to use peremptory challenges to remove jurors who are not
properly removed for cause. State v. Brooks, 631 P.2d 878, 883 (Utah 1981) ("Brooks II "); State v. Brooks, 563 P.2d 799, 802-03 (Utah 1977) ("Brooks I "); Crawford v. Manning, 542 P.2d 1091, 1093 (Utah 1975). It is prejudicial error to compel a party to exercise a peremptory challenge to remove a prospective juror who should have been removed for cause. Gotschall, 782 P.2d at 461; State v. Julian, 771 P.2d 1061, 1064 (Utah 1989). 5
Article I, section 12 of the Utah Constitution and the sixth amendment to the United States Constitution guarantee a criminal defendant the right to a trial by an impartial jury. See State v. Bishop, 753 P.2d 439, 448 (Utah 1988). Utah Rule of Criminal Procedure 18(e) implements these constitutional mandates and offers guidance as to when a juror should be removed for cause. This rule provides in relevant part:
The challenge for cause is an objection to a particular juror and may be taken on one or more of the following grounds:
....
(14) That 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....
Juror impartiality is a "mental attitude of appropriate indifference." Bishop, 753 P.2d at 451 (citing Brooks I, 563 P.2d at 801). "Chief Justice Marshall, presiding over the trial of Aaron Burr in 1807, defined an impartial jury as one composed of persons who 'will fairly hear the testimony which may be offered to them, and bring in their verdict, according to that testimony, and according to the law arising on it.' " State v. Bailey, 605 P.2d 765, 767 (Utah 1980) (citations omitted).
In assessing whether a juror should be removed for cause, the supreme court has given the following guidance:
Light impressions which may fairly be supposed to yield to the testimony that may be offered; which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but ... those strong and deep impressions which will close the mind against the testimony that may be offered in opposition to them; which will combat that testimony and resist its force, do constitute a sufficient objection to him.
Julian, 771 P.2d at 1064-65 (citations omitted).
Once a juror's impartiality has been put in doubt, a trial judge must investigate by further questions to determine if the juror has merely "light impressions" or impressions which are "strong and deep" and which will affect the juror's impartiality. "When comments are made which facially question a prospective juror's impartiality or prejudice, an abuse of discretion may occur unless the challenged juror is removed by the court or unless the court or counsel investigates and finds the inference rebutted." State v. Cobb, 774 P.2d 1123, 1126 (Utah 1989); see also Bishop, 753 P.2d at 451.
The dissent concludes that the mere fact that a juror was the victim of the same crime for which the defendant is on trial does not raise an "inference of bias" but merely a "question of bias." The dissent We find no distinction in Utah case law between a "question of bias" and an "inference of bias." Furthermore, we find no good policy reason not to require probing to clarify any possible prejudice when fundamental rights are at stake. Such narrow line drawing would only cause confusion for trial judges. First, judges would be required to determine if there was a potential for bias. Next, they would have to determine whether it fell into the class of a "question of bias" where minimal investigation was required or an "inference of bias" where more thorough questioning was required. A broader and simpler statement of the rule actually gives trial judges clearer direction and more latitude in ferreting out potential bias.
claims, therefore, that under these circumstances, a trial judge is not required to probe the juror to determine whether the potential bias is merely a "light impression," thus allowing the juror to remain, or an "impression which is deep and strong," in which case the court should remove the juror for cause.
We agree with the dissent that a trial judge in the first instance conducts voir dire to probe for potential bias. That is what the trial judge did in the instant case when he asked the potential jurors if any of them had been a victim of forgery. This probe did reveal a "question" or an "inference" of bias on the part of three potential jurors. Thus, we believe, contrary to the dissent, that "because the probing revealed a potential for bias," the trial judge was required to address the potential bias "through rehabilitative inquiry" until this "inference" or "question" was rebutted. This is precisely what the trial judge attempted to do.
Additionally, we do not understand what the dissent means by a "per se" inference of bias and reject any such nomenclature. If "per se" as used by the dissent means that a potential juror's prior victimization of the same crime for which the defendant is on trial raises an inference such that the trial judge must probe the juror to insure that he or she can decide the case impartially despite the past victimization, we do so hold. This...
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...based solely on the appearance that [the right of an accused to an impartial jury] may have been jeopardized." State v. Woolley , 810 P.2d 440, 442 (Utah Ct. App. 1991).¶38 In sum, Utah jurisprudence forcefully holds that once a court is apprised of an improper jury contact, a rebuttable pr......
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