Opinion
Case No. 20000292-CA.
Filed February 15, 2001. (Not For Official Publication)
Appeal from Second District, Ogden Department, The Honorable Stanton M. Taylor.
Maurice Richards, Ogden, for Appellant.
Mark L. Shurtleff and Thomas Brunker, Salt Lake City, for Appellee.
Before Judges Greenwood, Davis, and Thorne.
MEMORANDUM DECISION
Defendant appeals his jury convictions of three counts of aggravated robbery, first degree felonies, in violation of Utah Code Ann. § 76-6-302 (Supp. 1999). Defendant's only claim of error is that the trial court prejudiced the jury when the court commented about a holdout juror in another case during jury voir dire. We affirm.
The facts relevant to this appeal concern an exchange between the trial court and a prospective juror during jury voir dire. The court asked the potential jurors if any of them had served on a jury before. Two potential jurors answered in the affirmative; the second being relevant here. The second juror was Mr. Jackson. The following exchange took place among the court, Mr. Jackson, and Mr. Gravis, defense counsel:
As defendant raises only one issue, only facts relating to this exchange are included.
The Court: Anybody else over here [who has served on a jury before]? And then we've Mr. Jackson?
Mr. Jackson: Yes.
The Court: And about how long ago was that?
Mr. Jackson: It was about twelve years ago. I lived in Phoenix. The case was a triple, murder, robbery, rape.
The Court: Kind of a grim case, huh?
Mr. Jackson: Yes, and it lasted quite a long time.
The Court: Pardon me?
Mr. Jackson: The trial was about three weeks in length.
The Court: I see. Do you recall whether the defendant was guilty or not?
Mr. Jackson: We ended in a hung jury.
The Court: I see. So they got to go back and do it again?
Mr. Jackson: Yes.
The Court: I see. All right. Would you mind telling us how you voted?
Mr. Jackson: Would that matter?
The Court: It — it really doesn't. It's just kind of a curiosity thing.
Mr. Jackson: Guilty.
The Court: Okay. You felt like he was guilty and some other people —
Mr. Jackson: There were 12 and it was 11 guilty and 1 not guilty.
The Court: I see. It must have been Archie Bunker's wife, Edith.
Mr. Gravis: Not necessarily.
The Court: Not necessarily. That — well, that's a good point, Mr. Gravis.
Defendant claims that the emphasized portion of the communication prejudiced the jury.
Defendant contends that the court's Edith Bunker comment constitutes reversible error. Defendant argues that the comment suggested to jurors that they would be "ding bats" if they did not vote for a conviction or if their vote resulted in a hung jury. Defendant argues that because the comment was made to the entire jury panel, he was denied a right to an impartial jury in violation of Article 1, Section 12 of the Utah Constitution.
Mr. Jackson was excused from the panel and did not serve as a juror during Defendant's trial.
The State argues that defendant's trial counsel affirmatively waived any objection to the trial court's comment, and therefore, the claimed error should not be reviewed. We agree.
When trial defense counsel declines to object to an error for tactical reasons, defendant may not obtain appellate relief even if the error amounts to plain error. The supreme court stated in State v. Bullock, 791 P.2d 155, 158 (Utah 1989), that "if trial counsel's action amounted to an active, as opposed to a passive, waiver of an objection, we may decline to consider the claim of plain error." (footnote omitted). This court has similarly held that "when counsel makes a `conscious decision to refrain from objecting,' we may decline to consider an argument of plain error." State v. Ellifritz, 835 P.2d 170, 174 (Utah Ct.App. 1992) (citation omitted); see also State v. Hall, 946 P.2d 712, 716 (Utah Ct.App. 1997).
Defendant has not argued that the trial court committed plain error, nor has he demonstrated the issue was preserved in the trial court. The cases cited, however, demonstrate defendant could not prevail even if the issue had been preserved or if he had asserted plain error on appeal. Further, defendant has not argued that the failure to object or the waiver of the objection amounted to ineffective assistance of counsel.
These cases also hold that a court may infer from the record whether defense counsel affirmatively waived the objection. In Bullock, the supreme court looked at the actions of defense trial counsel to determine whether counsel's failure to object was part of the trial strategy. See Bullock, 791 P.2d at 159; see also Hall, 946 P.2d at 717 (finding defense counsel had allowed objectionable testimony as part of trial strategy).
In the present case, defense counsel was aware of the court's comment as he interjected during the Edith Bunker exchange. Further, defense counsel probed the jury during voir dire to determine if the court's comment affected the jurors' ability to act impartially. Defendant's counsel questioned the jury as follows:
Mr. Gravis: Now there was — during the prior voir dire there was talk about a hung jury. In a jury case — trial it requires — a criminal case requires a unanimous jury verdict to enter a conviction. Would any of you feel compelled not to feel like an Edith Bunker if you disagree with everybody else and want to go home and whatever they want to do to — and give up your own convictions?
(no response)
Mr. Gravis: You each would be willing to stand by your convictions, your position, no matter if it's seven to one against and — and you wouldn't give into pressure to go along with the rest of the juror's, correct?
(no response)
Mr. Gravis: Okay. Nothing further, Your Honor.
The jury did not respond to counsel's questions, indicating their ability to impartially weigh the evidence that would be presented to them. Defense counsel made no objection or other comment relating to the Edith Bunker comment. Further, defense counsel passed the prospective jurors for cause.
The acts of defense counsel indicate that he immediately recognized the potential harm of the court's statement. However, defense counsel's affirmative steps to verify that the jury remained impartial and allowing the entire panel to pass for cause clearly demonstrate that defendant's trial counsel waived any objection to the court's comment. This court will not, therefore, consider defendant's claim of jury prejudice.
Furthermore, we note that any potential damage caused by the trial court's comment was obviated by actions taken by both the court and defense counsel. We have already noted that defense counsel affirmatively probed and accepted the jury's impartiality.
Further, the trial court instructed the jury as to their proper role.
Accordingly, defendant's convictions are affirmed.
Pamela T. Greenwood, Presiding Judge.
WE CONCUR: James Z. Davis, Judge, William A. Thorne, Jr., Judge.