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referring to People v. Ritchie , 12 Utah 180, 42 P. 209, 212–13
Summary of this case from State v. SotoOpinion
No. 20170746
12-17-2019
STATE of Utah, Appellee, v. Lance BESS, Appellant.
Sean D. Reyes, Att'y Gen., John J. Nielsen, Asst. Solic. Gen., Salt Lake City, for appellee Paul G. Cassell, Salt Lake City, Lindsay Jarvis, South Jordan, for appellant
Sean D. Reyes, Att'y Gen., John J. Nielsen, Asst. Solic. Gen., Salt Lake City, for appellee
Paul G. Cassell, Salt Lake City, Lindsay Jarvis, South Jordan, for appellant
Justice Petersen authored the opinion of the Court, in which chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Pearce joined.
After this opinion first issued on June 3, 2019, Bess petitioned for rehearing. He asked this court to reconsider an argument he made invoking the Utah Constitution and reverse his conviction. We have reconsidered Bess's argument, which we address in amended paragraphs forty-three through fifty-six. But we deny his request that we reverse his conviction based on these arguments.
Justice Petersen, opinion of the Court:
INTRODUCTION
¶1 Lance Bess, a detective with the Unified Police Department, was bird hunting with several family members when another hunter accidentally fired three shots in their direction. When the firing stopped, Bess angrily confronted the hunter's group with his service weapon drawn and held at his side. As a result of this incident, the State charged Bess with one count of threatening with or using a dangerous weapon in a fight or quarrel (threatening with a dangerous weapon). He was convicted after a trial and timely appeals.
See Utah Code § 76-10-506(2) (outlining the elements of threatening with or using dangerous weapon in fight or quarrel).
¶2 The relevant criminal statute makes an exception for persons acting in self-defense and peace officers in performance of their duties (performance of duties). The court of appeals certified this case to us to determine whether these exceptions are elements of the offense or affirmative defenses.
¶3 Bess argues that the district court's treatment of these exceptions as affirmative defenses caused a structural error in the trial. He also argues that the court wrongly excluded a declaration from a juror in support of his motion for a new trial and that the court gave the jury an unconstitutionally coercive deadlock instruction.
A deadlock instruction, also known as an Allen charge, is "[a] supplemental jury instruction given by the court to encourage a deadlocked jury, after prolonged deliberations, to reach a verdict." Allen Charge , Black's Law Dictionary (10th ed. 2014); see also Allen v. United States , 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).
¶4 We affirm.
"On appeal from a jury verdict, we view the evidence and all reasonable inferences in a light most favorable to that verdict and recite the facts accordingly." State v. Pinder , 2005 UT 15, ¶ 2, 114 P.3d 551 (citation omitted) (internal quotation marks omitted).
¶5 Bess and his family were hunting at public shooting grounds when an inexperienced hunter shot in their direction. Despite the family's attempts to alert the shooter to their presence, the shooter fired twice more. After the shooting stopped, Bess—still holding his shotgun—drew his service weapon and approached the hunting party. He shouted profanities at the group and demanded to know who had shot at his family. Admitting fault, an adult man in the hunting party acknowledged that a young, inexperienced hunter in their group had accidently fired shots in the family's direction. And the young hunter was in tears, upset at his mistake. The man requested that Bess put his service weapon away. When Bess refused, the man suggested that they call the police. In response, Bess said, "[G]o right ahead, I am a fucking cop." The man then asked to see Bess's badge, but Bess denied having it with him. After the man expressed doubts as to Bess's credentials, Bess quickly flashed his badge at them. Bothered by the encounter, the man from the hunting party notified the police.
¶6 The State ultimately charged Bess with one count of threatening with a dangerous weapon, and the case proceeded to trial.
¶7 At the beginning of trial, over Bess's objection, the district court provided the jury with the following instruction:
Lance Bess is charged with committing [the offense of] threatening with or using a dangerous weapon in a fight or quarrel. You cannot convict him of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:
No. 1: That the defendant, Lance Bess;
No. 2: In the presence of two or more persons;
No. 3: Intentionally, knowingly or recklessly;
No. 4: Drew or exhibited a dangerous weapon;
No. 5: In an angry and threatening manner.
¶8 Bess argued that the jury instruction omitted what he termed "negative elements" of the charged crime, specifically that (1) he did not act in self-defense and (2) he was not a peace officer in performance of his duties. In overruling Bess's objection, the district court concluded that these provisions of Utah Code section 76-10-506 were affirmative defenses, not elements. Accordingly, the district court explained that some evidence supporting the defenses must be presented by either party before it would instruct the jury on them.
¶9 After the defense rested, the district court determined that sufficient evidence had been presented to instruct the jury on both affirmative defenses. Thus, before closing arguments, the court gave its final instructions on the law. In addition to listing the five elements included in the preliminary jury instruction, the replacement instruction provided that the jury could not convict Bess unless it also found beyond a reasonable doubt that he "did not draw or exhibit the weapon in self-defense" and that he "was not a peace officer ... acting in the performance of his duties." The final jury instruction was the same instruction that Bess had requested at the beginning of trial.
¶10 During its closing argument, the State noted that it had to prove "essentially seven elements" beyond a reasonable doubt, including disproving the affirmative defenses. The defense also focused their closing arguments on the affirmative defenses.
¶11 After deliberating for approximately three hours, the jurors sent a note to the judge indicating they were deadlocked. Bess moved for a mistrial, but the district court denied the motion and instead read the jury the deadlock instruction from the Model Utah Jury Instructions. The jury deliberated for three more hours and ultimately convicted Bess. When polled, each juror affirmed that his or her verdict was guilty.
¶12 Bess then moved for a new trial, arguing that the district court had erroneously omitted two "negative elements" from the preliminary jury instruction. The motion included a declaration from Bess's trial counsel summarizing several conversations she had had with jurors regarding the difference between the preliminary and final elements instructions. According to Bess's trial counsel, several jurors stated that they were surprised by the change in the jury instructions and said that they could have been listening for evidence supporting those provisions if they had known to do so from the beginning of trial.
¶13 The parties stipulated to a briefing schedule for the motion for a new trial. Bess agreed to submit his reply to the State's response to the motion by 5:00 p.m. on August 11, 2017. However, on the due date, Bess did not file his reply memorandum until shortly after 7:00 p.m. Along with the motion, he attached a juror declaration impeaching the verdict and an accompanying motion to supplement the new trial motion.
¶14 The State moved to strike the juror statements impeaching the verdict, arguing that they violated rule 606 of the Utah Rules of Evidence. At oral argument on these motions, the district court, on its own, excluded both parties’ late filings, noting that they had both been "very adamant about deadlines." The court thus decided to strike any untimely materials, including Bess's reply and supplemental materials.
¶15 The district court then denied the motion for a new trial on the merits, reasoning that "[a] plain reading of the statute demonstrates self-defense and performance-of-duties were included as exemptions, which are defined and construed as affirmative defenses." The court explained that the State was therefore not required to negate the defenses unless and until sufficient evidence was presented to put them at issue. The court observed that Bess had not been prejudiced in any event, because the jury was notified that the instructions were subject to amendment and the final instructions included all of the language Bess had requested. As to the deadlock instruction, the district court noted that it had "simply followed the standard approach."
¶16 Bess timely appealed. The court of appeals certified the case to us to consider whether Utah Code section 76-10-506(4), which provides that "[t]his section does not apply to a [peace officer] in performance of the person's duties," constitutes an element of or an affirmative defense to the charge of threatening with a dangerous weapon. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(b).
STANDARD OF REVIEW
¶17 We review a district court's denial of a motion for a new trial for an abuse of discretion. See State v. Martin , 2002 UT 34, ¶ 45, 44 P.3d 805. But "[w]e review the legal standards applied by the [district] court in denying such a motion for correctness" and "the [district] court's factual findings for clear error." State v. Maestas , 2012 UT 46, ¶ 103, 299 P.3d 892 (citation omitted) (internal quotation marks omitted).
ANALYSIS
¶18 Bess raises a number of issues that fall into three categories. First, he contends that the district court erred in concluding that self-defense and performance of duties are affirmative defenses rather than elements of the offense. As a result of the mischaracterization, Bess argues that the preliminary jury instruction misstated the State's burden of proof, causing a structural trial error. Second, Bess contends that the district court abused its discretion in excluding as untimely the juror's declaration impeaching the verdict. He also argues that Utah Rule of Evidence 606(b), which precludes juror testimony during an inquiry into the validity of a verdict except in narrow circumstances, is unconstitutional under both the United States and Utah constitutions. Finally, he argues that the deadlock instruction was unconstitutionally coercive under the circumstances presented here.
Bess also contends that the cumulative effect of these errors mandates a new trial. "Under the cumulative error doctrine, we will reverse [a jury verdict or sentence] only if the cumulative effect of the several errors undermines our confidence ... that a fair trial was had." State v. Maestas , 2012 UT 46, ¶ 363, 299 P.3d 892 (alterations in original) (citation omitted) (internal quotation marks omitted). Because we conclude that the district court did not err, the cumulative error doctrine does not apply and we decline to grant Bess a new trial on this basis.
¶19 We conclude that under Utah Code section 76-10-506, self-defense and performance of duties are affirmative defenses, not elements of the offense. We also determine that the juror's declaration was inadmissible under rule 606(b) of the Utah Rules of Evidence, so we do not reach whether the court abused its discretion in excluding it due to untimeliness. Finally, we conclude that Bess failed to prove that the district court's deadlock instruction was unconstitutionally coercive under the circumstances here.
Utah Code sections 76-10-506 and -523 were recently amended. Although the amendments are non-substantive, for clarity, we cite to the 2014 version of the Utah Code, which was in effect at the time of the incident in question and was used to draft the jury instructions in this case.
¶20 We address each of the errors Bess alleges in turn.
I. PRELIMINARY JURY INSTRUCTION
¶21 Before the parties gave their opening statements, the district court read preliminary instructions to the jury to orient them to the trial process. As Bess acknowledges, such instructions do not have to address the elements of charged crimes. See UTAH R. CRIM . P. 19(a) ("After the jury is sworn and before opening statements, the court may instruct the jury concerning ... the elements and burden of proof for the alleged crime ...." (emphasis added)). But here, the court included an instruction outlining the elements of threatening with a dangerous weapon. The instruction explained that the State had to prove beyond a reasonable doubt that: (1) The defendant, Lance Bess; (2) in the presence of two or more persons; (3) intentionally, knowingly or recklessly; (4) drew or exhibited a dangerous weapon; (5) in an angry and threatening manner.
¶22 Bess argues this instruction was incorrect because it excluded two "negative elements" that the State was required to disprove beyond a reasonable doubt: that the defendant was not (1) acting in self-defense or (2) a peace officer in performance of his duties. Over Bess's objection, the district court concluded these were affirmative defenses upon which the jury should not be instructed until enough evidence was introduced in support of them to put the defense at issue.
Utah Code section 76-10-506(2) references the self-defense statute as an exception to the outlined offense. And section 76-10-506(3) outlines a particular variant of self-defense that is specific to this crime, stating, "This section does not apply to a person who, reasonably believing the action to be necessary in compliance with Section 76-2-402 [ (the self-defense statute) ], with purpose to prevent another's use of unlawful force: (a) threatens the use of a dangerous weapon; or (b) draws or exhibits a dangerous weapon."
See Utah Code § 76-10-506(4) ("This section does not apply to a person listed in Subsections 76-10-523(1)(a) through (e) in performance of the person's duties."). Relevant here, section 76-10-523(1)(c) lists "a peace officer of this or any other jurisdiction."
¶23 Bess contends that the plain language and legislative purpose of the relevant statute, see UTAH CODE § 76-10-506, show that these are elements of the crime. Alternatively, he argues that if we determine the statute is ambiguous, the rule of lenity dictates that the statute should be construed in his favor.
"The rule of lenity requires that we interpret an ambiguous statute in favor of lenity toward the person charged with criminal wrongdoing." State v. Rasabout , 2015 UT 72, ¶ 22, 356 P.3d 1258.
¶24 We first address Bess's plain language argument. Bess asserts that the text of the statute shows that self-defense and performance of duties are elements because they appear within the statute itself rather than in the sections of the code listing affirmative defenses, see id. §§ 76-2-301 to -307, or in their own section as do justification and self-defense, see id. §§ 76-2-401 to -402. He also notes that section 506 does not label them as affirmative defenses. None of this means that section 506 plainly designates the absence of self-defense and performance of duties as elements of threatening with a dangerous weapon.
¶25 "[O]ur primary goal in interpreting statutes is to give effect to the legislative intent, as evidenced by the plain language, in light of the purpose the statute was meant to achieve." State v. Burns , 2000 UT 56, ¶ 25, 4 P.3d 795. "[W]e read the plain language of the statute as a whole[ ] and interpret its provisions in harmony with other statutes in the same chapter and related chapters." State v. Holm , 2006 UT 31, ¶ 16, 137 P.3d 726 (citation omitted) (internal quotation marks omitted). We do not look to other interpretive tools unless we conclude that the statute is ambiguous. See id. We thus proceed by analyzing the plain language of Utah Code section 76-10-506 in context.
¶26 The statute defining the offense of threatening with a dangerous weapon appears in Chapter 10 of the Utah Criminal Code, which deals with "Offenses Against Public Health, Safety, Welfare, and Morals." The statute is located in Part 5 of this chapter, which contains Utah's criminal weapons laws. Also in Part 5 is a provision listing persons who are, for the most part, exempt from these weapons laws. See UTAH CODE § 76-10-523(1)(a)–(f) (2014). The list includes: United States marshals, federal officials who are required to carry a firearm, peace officers, law enforcement officials and judges as defined and qualified under Utah Code section 53-5-711, and common carriers engaged in the regular and ordinary transport of firearms as merchandise. Id.
¶27 Although these persons are mostly exempt from Utah's weapons laws, the exemption is not absolute. Three criminal weapons statutes, including the one at issue here, specify that these officials are exempt from the offenses they circumscribe only under certain circumstances—primarily that they are acting in self-defense or in performance of their duties. See id. §§ 76-10-506, -508, -508.1. In practice, this means that United States marshals, peace officers, judges, or any of the other officials listed in section 523(1)(a)–(e) are prohibited from: threatening others with or using a dangerous weapon during a fight; discharging a firearm from a vehicle, near a highway, or in the direction of any person; and discharging a firearm in the direction of a building, habitable structure, or vehicle—unless they are acting in self-defense or in performance of duties. See id. §§ 76-10-506, -508, -508.1, -523.
The individuals listed in Utah Code section 76-10-523(1) are not exempt from sections 506, 508, and 508.1 of this part or from section 53-5-7, the Concealed Firearm Act.
¶28 Looking to the specific language of section 506 in this context, it states in relevant part:
(2) Except as otherwise provided in Section 76-2-402 [the self-defense statute] and for those persons described in Section 76-10-503
[who are restricted from possessing dangerous weapons], a person who, in the presence of two or more persons, and not amounting to a violation of Section 76-5-103 [aggravated assault], draws or exhibits a dangerous weapon in an angry and threatening manner or unlawfully uses a dangerous weapon in a fight or quarrel is guilty of a class A misdemeanor.
(3) This section does not apply to a person who, reasonably believing the action to be necessary in compliance with Section 76-2-402 [the self-defense statute], with purpose to prevent another's use of unlawful force:
(a) threatens the use of a dangerous weapon; or
(b) draws or exhibits a dangerous weapon.
(4) This section does not apply to a person listed in Subsections 76-10-523(1)(a) through (e) in performance of the person's duties.
Id. § 76-10-506(2) – (4).
¶29 The plain language of the statute shows that self-defense and performance of duties are exemptions from the offense. The statute states that it "does not apply" to a person listed in section 523(1)(a)–(e)—here, a peace officer—in performance of duties. With regard to self-defense, the statute states both that it "does not apply" to individuals who reasonably believe they must act to prevent another's use of unlawful force, see id. § 76-10-506(3), and that self-defense is an exception to the outlined offense, see id. § 76-10-506(2) (stating that the offense is a class A misdemeanor "[e]xcept as otherwise provided in 76-2-402").
¶30 As we concluded in State v. Smith , 2005 UT 57, 122 P.3d 615, exemptions from criminal statutes generally function as affirmative defenses. Id. ¶ 19. In Smith , we stated that possession of a license or permit was an affirmative defense to carrying a concealed firearm. Id. We said: "Exemptions from laws, particularly when based on possession of a license or permit ... are typically construed as affirmative defenses, partly because a defendant is in a better position to prove he has a permit than is the State to prove that he lacks such a permit." Id.
¶31 Further, the defendant is better positioned to know if any of the many possible exemptions even apply in his case. To construe these provisions as elements would mean that the State would have to disprove every exception to section 506—whether relevant in a given case or not. Under Bess's logic, in addition to the five elements the district court recited, the State would have to prove that Bess is also not (1) a United States marshal, nor (2) a federal official required to carry a firearm, nor (3) a peace officer, nor (4) a law enforcement official as defined and qualified in Utah Code section 53-5-711, nor (5) a judge as defined and qualified in section 53-5-711, and that (6) he was not acting in self-defense. And the State would have to do this in every case in which it charged a violation of sections 506, 508, or 508.1. One of the basic functions of affirmative defenses is to narrow the issues to those that are relevant. See Thomas R. Lee, Pleading and Proof: The Economics of Legal Burdens , 1997 BYU L. REV . 1, 6.
¶32 Utah Code section 76-1-501 is also instructive. It defines "element of the offense" as "the conduct, attendant circumstances, or results of conduct proscribed, prohibited, or forbidden in the definition of the offense" along with "the culpable mental state required." UTAH CODE § 76-1-501(2) (emphasis added). Here, self-defense and performance of duties are not part of the conduct that is "proscribed, prohibited, or forbidden." Rather, in outlining the exceptions to section 506, the legislature provided guidance as to when it does and does not apply. Bess essentially argues that the State must prove as elements not only the conduct that is forbidden, to which the law applies, but also the conduct or circumstances that are not forbidden, to which the law does not apply. That is incorrect.
¶33 Because the plain language of the statute shows that self-defense and performance of duties are exceptions to section 506, we conclude the district court correctly determined that they were affirmative defenses against the charged offense. Self-defense and performance of duties function as affirmative defenses to the offense of threatening with a dangerous weapon.
¶34 Importantly, this does not shift the burden of proof from the State to the defendant. Rather, it means that sufficient evidence must be presented at trial to put the affirmative defense at issue. See State v. Campos , 2013 UT App 213, ¶ 41, 309 P.3d 1160 ("[O]nce a defendant—or even the prosecution for that matter—has produced enough evidence to warrant the giving of an instruction on an affirmative defense, the defendant is entitled to acquittal ... unless the prosecution carries its burden of disproving the defense beyond a reasonable doubt." (emphasis omitted)). At that point, the State must disprove the defense beyond a reasonable doubt. See id. Accordingly, the district court did not err in waiting to instruct the jury on these defenses until the final instructions, after Bess had placed the defenses at issue.
II. JUROR DECLARATION
¶35 Bess next argues that the district court erred in excluding the juror declaration he submitted with his motion for a new trial. In particular, he argues that the court abused its discretion when it elected not to consider the declaration because it was untimely. Because we ultimately conclude that the district court would be barred from considering the declaration under rule 606(b) of the Utah Rules of Evidence, any error in excluding it due to untimeliness is harmless. We therefore decline to address whether the court abused its discretion in this regard and instead affirm on alternative grounds. See Bailey v. Bayles , 2002 UT 58, ¶ 20, 52 P.3d 1158 ("[A]n appellate court may affirm the judgment appealed from if it is sustainable on any legal ground or theory apparent on the record.").
¶36 Rule 606(b) prohibits, with a couple of exceptions, the admission of a juror declaration pertaining to "any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment." It prohibits "virtually all inquiries into the jury deliberation process." State v. King , 2008 UT 54, ¶ 45, 190 P.3d 1283 (citation omitted) (internal quotation marks omitted). These restrictions help to insulate the jury and protect jurors from being harassed by defeated parties.
¶37 Bess argues that rule 606(b) should not limit the use of the declaration because " Utah Rule of Evidence 606(b) was recently declared unconstitutional as written." In support, Bess refers to the United States Supreme Court's recent decision in Pena-Rodriguez v. Colorado , ––– U.S. ––––, 137 S. Ct. 855, 197 L.Ed.2d 107 (2017). But Bess misreads the holding of that case. In Pena-Rodriguez , the Supreme Court determined that Colorado's rule 606(b) equivalent was unconstitutionally applied when it precluded juror testimony regarding racial animus among the jurors. Specifically, the Supreme Court said,
[W]here a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee.
Id. at 869.
¶38 We read Pena-Rodriguez to strike down Colorado's rule 606(b) only as applied to statements indicative of racial animus. Beyond this narrow, as-applied holding, Pena-Rodriguez contains language supporting the policy behind rule 606(b). According to the Supreme Court, the no-impeachment rule "promotes full and vigorous discussion" and it "gives stability and finality to verdicts." Id. at 865. We do not read Pena-Rodriguez to strike down Utah's or any other state's 606(b) equivalent as facially unconstitutional.
¶39 Under rule 606(b), the declaration is an impermissible encroachment into the jury's deliberative process. The rule contains two narrow exceptions, one of which Bess claims is relevant here. Jurors are permitted to testify about whether "extraneous prejudicial information was improperly brought to the jury's attention" or "an outside influence was improperly brought to bear on any juror." UTAH R. EVID . 606(b)(2). Bess contends that the contested declaration falls under the extraneous prejudicial information exception. But that is incorrect.
¶40 In particular, Bess argues that the declaration discloses that two items of extraneous prejudicial information were brought to the jury's attention. According to the declaration, one juror, a "deputy," began educating the rest of the jurors about concealed weapons permits. The juror stated that he "wouldn't have handled the situation like Bess handled it." Another juror discussed his own criminal conviction and stated that, in being held accountable, he realized his mistake. The declaration quotes this juror as saying, "I had to be held accountable for my actions, he needs to be held accountable for his." Bess argues that these statements were "extraneous" because the information was not presented at trial.
¶41 But this is not extraneous information within the meaning of rule 606(b). "[E]xtraneous prejudicial information ‘cover[s] misconduct such as jurors reading news reports about the case, jurors communicating with third parties, bribes, and jury tampering.’ " State v. Maestas , 2012 UT 46, ¶ 114, 299 P.3d 892 (second alteration in original) (citation omitted). It also "includes the jury's consideration of evidence not admitted in court, and instances where a juror ‘conduct[ed] his own investigation and [brought] the results into the jury room.’ " Id. (alterations in original) (citations omitted). It is not "evidence of discussions among jurors" or "instances where a juror ... brings his personal experiences to bear on the matter at hand." Id. (alteration in original) (citations omitted) (internal quotation marks omitted). The statements that Bess seeks to admit are best characterized as juror discussions about personal experiences and opinions. The declaration does not contain allegations of extraneous prejudicial information being brought to the jury's attention.
¶42 We conclude that the juror declaration is impermissible under rule 606(b), and no exception applies to it.
¶43 However, Bess argues that notwithstanding rule 606(b), the Utah Constitution guarantees "his right to have the juror's affidavit considered." In support of this argument, he points to three rights protected under our state constitution: the right to trial by an impartial jury, UTAH CONST. art. I, § 12 ; the right to due process of law, id. art. I, § 7; and the right to a unanimous verdict in criminal cases, id. art. I, § 10.
¶44 To interpret our constitution, "we start with the meaning of the text as understood when it was adopted." S. Salt Lake City v. Maese , 2019 UT 58, ¶ 18, 450 P.3d 1092. This means Bess must convince us that in 1895, the people of Utah would have understood these provisions to enshrine a principle requiring courts to consider jurors’ testimony impeaching their verdicts. However, he does not identify any language in these provisions that relates to juror testimony. Rather, he argues generally that the drafters of the Utah Constitution "would be surprised to learn" that a rule of evidence could prevent a defendant from introducing evidence showing his state constitutional rights were violated. The premise of Bess's argument seems to be that because he contends the juror affidavit shows a violation of his state constitutional rights, the state constitution must require the admission of the juror affidavit.
¶45 Bess looks to several historical sources to buttress his contention that we should read evidentiary requirements into these constitutional provisions. First, Bess notes that three years before the framers met to draft the Utah Constitution, the United States Supreme Court decided Mattox v. United States , 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892). In Mattox , the Court ruled that it was error for a Kansas trial court to not consider juror testimony that the jury had been exposed to prejudicial extraneous information. See id. at 151, 13 S.Ct. 50. Bess presumes that our constitution's drafters "had such concerns in mind when they enshrined in Utah's constitution special protections for the right to a jury trial in criminal cases."
Notably, the extraneous information at issue in Mattox v. United States , 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892), would safely fit within the exception in Utah Rule of Evidence 606(b)(2)(A) permitting juror testimony about whether "extraneous prejudicial information was improperly brought to the jury's attention." In Mattox , jurors provided affidavits stating that the jury had been exposed to (1) a statement from the bailiff in charge that "this was the third person [the defendant] had killed," and (2) a local newspaper article stating that
the defendant had been tried for his life once before; that the evidence against him was claimed to be very strong by those who had heard all the testimony; that the argument for the prosecution was such that the defendant's friends gave up all hope of any result but conviction; and that it was expected that the deliberations of the jury would not last an hour before they would return a verdict.
146 U.S. at 150–51, 13 S.Ct. 50.
¶46 There are several problems with Bess's argument. Although he cites to the Official Report of the Proceedings and Debates of the Utah Constitutional Convention, he does not locate any discussion of Mattox or the role juror testimony should play in protecting the right to an impartial jury, a unanimous criminal verdict, or due process. So the Official Report does not confirm his presumption. And Bess does not identify any language the drafters included in the constitution addressing the role of juror testimony.
¶47 Further, the Mattox Court's holding with respect to juror affidavits was not based on a constitutional mandate. And importantly, Bess provides no analysis regarding how Mattox would have caused the Utahns who ratified the constitution to believe that the provisions he identifies required admission of juror testimony impeaching the jury's verdict.
In People v. Ritchie , the Supreme Court of the Territory of Utah distinguished Mattox on this basis when it applied a Utah territorial statute to reject a juror affidavit. 12 Utah 180, 42 P. 209, 212–13 (1895) ("If there had been no legislation by the territory [of Utah] upon the subject, the case of Mattox v. U.S. ... would have controlled; but it is clear from numerous decisions that, the territory having spoken upon this question of procedure, its declaration is conclusive."). The Utah territorial court could not have reached this holding if it read Mattox to issue a constitutional requirement.
¶48 It also bears noting that Mattox ’s holding essentially recognized the very exceptions that appear in our current rule 606(b)(2), that a juror may testify only about whether the jury was exposed to extraneous prejudicial information or whether an outside influence was improperly brought to bear on any juror. See id. at 148–50, 13 S.Ct. 50. The Mattox Court relied on a Kansas case to explain the "recognized distinction between what may and what may not be established by the testimony of jurors to set aside a verdict" as follows:
Public policy forbids that a matter resting in the personal consciousness of one juror should be received to overthrow the verdict, because, being personal, it is not accessible to other testimony. It gives to the secret thought of one the power to disturb the expressed conclusions of twelve. Its tendency is to produce bad faith on the part of a minority; to induce an apparent acquiescence with the purpose of subsequent dissent; to induce tampering with individual jurors subsequent to the verdict. But as to overt acts, they are accessible to the knowledge of all the jurors. ... One cannot disturb the action of the twelve; it is useless to tamper with one, for the eleven may be heard.
Id. at 148–49, 13 S.Ct. 50 (quoting Perry v. Bailey , 12 Kan. 539, 545 (1874) ). So even if Mattox had been on Utahns’ minds at the time of ratification, it would not undermine rule 606(b) or support Bess's argument.
¶49 Bess next looks to the 1898 Utah Code to support his argument. He asserts that "the prohibition of receiving information from jurors about the deliberations does not appear to have been a part of Utah law during the very first year of statehood." Bess claims that "Utah's first rules of evidence (contained in the Code of Civil Procedure) specifically allowed posttrial inquiry into jury deliberations." But he does not cite or quote the provision of the Code of Civil Procedure to which he refers. ¶50 Instead, Bess turns to a discussion of a provision in the 1898 Code of Criminal Procedure, which established the grounds upon which a criminal defendant could receive a new trial, including:
Possibly Bess is referring to a statute he later includes in his reply brief. There, he cites to section 3292 of the 1897 Revised Statutes of Utah. But he did not attach this material to his brief. We assume he is referring to the revised code that was submitted to the legislature in 1897 but took effect on January 1, 1898, which we refer to as the 1898 Code. The 1898 Code contains the language Bess quotes in his reply brief at title 73, section 3292. This section allowed a new trial for certain causes that materially affected a party's substantial rights, including "[m]isconduct of the jury." Utah Rev. Stat. § 3292(2) (1898). It then stated,
and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any questions submitted to them by the court, by a resort to the determination of chance , such misconduct may be proved by the affidavit of any one of the jurors.
Id. (emphasis added). But this is not a general allowance of juror testimony during a posttrial inquiry into the verdict. Bess himself describes this statute as limiting juror affidavits to the narrow situation where jurors resort to chance to determine their verdict. In his reply, he contrasts this civil statute with the criminal code at sections 4952(2), (3), (4), arguing that because the criminal provision governing new trials does not contain the limiting language of this civil statute, which permits juror affidavits only when a jury resorts to chance, we should read the criminal new trial provision to allow unrestricted use of juror affidavits. We disagree. As we explain, the criminal statute was simply silent on how defendants could show they were entitled to a new trial. And the annotations to the criminal code indicated that the code drafters understood contemporaneous law to generally prohibit the use of juror testimony.
When the jury shall have received out of court any evidence, other than that resulting from a view of the premises, or any communication, document, or paper referring to the case.
When the jury shall have separated without leave of the court, after retiring to deliberate upon their verdict, or have been guilty of any misconduct by which a fair and due consideration of the case may have been prevented.
When the verdict shall have been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors.
Id. § 4952(2), (3), (4). But while this demonstrates an intent to provide defendants with the ability to obtain a new trial, it tells us little about Utahns’ understanding of how defendants could prove they were entitled to one. This section is silent as to the admissibility of juror affidavits.
¶51 And, to the extent that the 1898 Code's annotations indicate contemporary understanding of relevant case law, those annotations referenced two opinions holding that jurors’ affidavits were inadmissible to impeach a verdict. Under the heading "Affidavit impeaching verdict," the annotation cited to People v. Ritchie , 12 Utah 180, 42 P. 209 (1895), with the following holding: "The affidavit of a juror that, during the progress of the trial, he took certain measurements of a locality testified to on the trial, and that he communicated the same to the other jurors, cannot be received to impeach the verdict." Under the same heading, the annotation cited to People v. Flynn , 7 Utah 378, 26 P. 1114 (1891), with the following holding:
In a criminal case, affidavits of jurors will not be received to impeach or question their verdict, nor to show the grounds upon which it was rendered, nor to show their misunderstanding of facts or of law, nor that they misunderstood the charge of the court, nor the effect of their verdict, nor their opinions, surmises, and processes of reasoning in arriving at their verdict.
¶52 Accordingly, the new-trial provision of the 1898 Code of Criminal Procedure did not establish that juror affidavits could be broadly used to impeach jury verdicts. But most importantly, Bess does not explain how the statutory provision he cites would have influenced contemporary Utahns to believe the state constitution required the admission of such affidavits. ¶53 Finally, Bess suggests that because of "aggressive anti-polygamy prosecutions by the federal government in the decades leading up to Utah's statehood," the framers of the Utah Constitution "would not have wanted artificial or technical limitations on [a defendant's] ability to prove he was unjustly convicted." We have previously expressed skepticism about arguments that assert "one, likely true, fact about Utah history and let[ ] the historical analysis flow from that single fact." State v. Tulley , 2018 UT 35, ¶ 82, 428 P.3d 1005 (citation omitted). While this "historical backdrop may be one piece of the puzzle, it does not, by itself, reveal the entire picture." Id. ¶ 83. It is easy for us to conclude that the anti-polygamy prosecutions had some influence on the way the framers saw the world, but the more difficult question—and the one we need to answer to address questions like the one Bess presents—is precisely how they influenced the constitution. Generalized arguments based on speculation do not help us understand the impact of Utah's unique history on the Utah Constitution.
Bess cites our opinion in South Salt Lake City v. Maese for the proposition that the 1898 Code carries extra weight in interpreting our state constitution because it was the "first effort to codify the law after adoption of our constitution." 2019 UT 58, ¶¶ 45–46, 450 P.3d 1092. But in that case we cautioned that in reading the 1898 Code, "we do not expect to find a perfect enshrinement of constitutional principles or a dictionary of constitutional terms" because "even the first Legislature could have enacted an unconstitutional law or decided to provide statutory protections broader than those they placed in the constitution." Id. ¶ 46. So even if the 1898 Code said what Bess claims it does, it would not be dispositive evidence of our constitution's meaning. References to the 1898 Code or any other historical evidence intended to shed light on the meaning of our constitution must be accompanied by analysis explaining how they help us understand specific constitutional language. In Maese , we reviewed the state constitution's guarantee of the right to a jury trial in criminal prosecutions. See id. ¶¶ 15–86. We had to determine what that language would have meant to contemporary Utahns. The 1898 Code gave us evidence, confirmed by what was happening federally and in the other states, that there was a category of criminal trials that people understood would not be tried by a jury. Here, Bess has not explained how the code provisions he cites tell us that at the time, Utahns would have understood the constitutional guarantees of an impartial jury, a unanimous jury, or due process to require admission of juror testimony impeaching a verdict.
¶54 At most, Bess demonstrates that federal case law required admission of juror testimony in narrow circumstances that track the exception found in our current evidentiary rule 606(b)(2)(A), and that shortly after statehood our statutory code established a number of grounds that would give a defendant a new trial. It could be, as Bess appears to assume, that the people of Utah took for granted that a juror affidavit could be used to establish the basis for a new trial, but we have little other than that assumption to reach that conclusion. This leaves us unable to opine that the people of Utah in 1895 would have understood that in order to protect the right to an impartial jury, a unanimous criminal verdict, and due process of law, a defendant had a constitutional right to introduce juror testimony impeaching the jury's verdict.
¶55 We appreciate the opportunity to interpret our constitution and we appreciate the history that Bess has provided. But ultimately what Bess offers is insufficient to meet his burden of establishing that the Utah Constitution guarantees a defendant the right to submit a juror affidavit in the circumstances here.
¶56 Accordingly, we affirm the district court's decision to reject the juror affidavit on the alternative ground that it is inadmissible under rule 606(b).
III. DEADLOCK INSTRUCTION
¶57 Finally, Bess argues that the deadlock instruction provided to the jury was unconstitutionally coercive. While Bess recognizes that courts must typically speculate as to the coercive effect of a deadlock instruction, he contends that we may avoid doing so here by looking to the juror declaration that he submitted with his motion for a new trial. We conclude that the declaration is inadmissible for this purpose and that Bess has otherwise failed to demonstrate that the deadlock instruction was coercive.
¶58 Utah courts have repeatedly upheld the use of deadlock instructions as a permissible way "to guide the jury to a fair and impartial verdict," so long as the instruction is not coercive. See State v. Ginter , 2013 UT App 92, ¶ 6, 300 P.3d 1278 (quoting State v. Lactod , 761 P.2d 23, 29–30 (Utah Ct. App. 1988) (internal quotation marks omitted)). In determining the constitutionality of a particular deadlock instruction, we consider (1) whether the language of the instruction is per se coercive, and (2) whether it is coercive under the circumstances presented in the case. See Lactod , 761 P.2d at 30–31.
¶59 Here, the jurors deliberated for approximately three hours before notifying the court that they were deadlocked five votes to one in favor of conviction. To encourage further deliberation, the court recommended that it provide the jury with a deadlock instruction patterned after Model Utah Jury Instruction CR218. Bess objected and moved for a mistrial, which the court denied. When the jurors returned, the court asked them "to keep working at this for a time period" and stated that it would provide one final instruction. The instruction read:
The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree. Your verdict must be unanimous. It is your duty to consult with one another and to deliberate. Your goal should be to reach an agreement ... if you can do so without surrendering your individual judgment. Each of you must decide the case for yourself, but do so only after impartially considering the evidence with your fellow jurors. Do not hesitate to reexamine your own views and change your position if you are convinced [it] is a mistake. But do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or just to return a verdict. You are judges, judges of the facts. Your sole interest is to determine the truth from the evidence of the case.
¶60 The jury continued deliberating for three more hours before it issued a unanimous guilty verdict. When polled, each juror confirmed that he or she agreed with the guilty verdict.
¶61 Bess concedes that the language of this deadlock instruction is not per se coercive. Instead, he argues that the instruction was coercive in light of the circumstances presented here. Nevertheless, Bess does not engage in any meaningful analysis of the circumstances surrounding the district court's issuance of the instruction. Rather, he asks us to rely on the juror declaration to conclude that the instruction had a coercive effect. We decline to do so.
¶62 As previously stated, under the Utah Rules of Evidence, juror declarations are admissible to dispute the validity of a verdict only where "extraneous prejudicial information was improperly brought to the jury's attention" or where "an outside influence was improperly brought to bear on any juror." UTAH R. EVID. 606(b). Neither exception is applicable to decide whether a deadlock instruction had a coercive effect. See United States v. Black , 843 F.2d 1456, 1464 n.7 (D.C. Cir.1988) (providing that a verdict cannot be impeached by a juror's affidavit stating that "the anti-deadlock instructions were coercive").
¶63 In relying solely on the inadmissible juror declaration to support his contention that the deadlock instruction was unconstitutionally coercive, Bess has failed to meet his burden of persuasion on appeal. See State v. Nielsen , 2014 UT 10, ¶¶ 33–44, 326 P.3d 645 (stating that parties who fail to adequately brief their arguments will likely fail to meet their burden of persuasion on appeal). In particular, Bess has not provided reasoned analysis supported by citations to the record to establish which circumstances, if any, demonstrate that providing the deadlock instruction was unconstitutionally coercive here. See UTAH R. APP. P. 24(a)(8). We therefore decline to further address this issue.
CONCLUSION
¶64 We conclude that under Utah Code section 76-10-506, self-defense and acting as a peace officer in performance of duties are both affirmative defenses, not elements of the offense. We also conclude that the juror declaration submitted by Bess was inadmissible under rule 606(b) of the Utah Rules of Evidence, and we reject Bess's arguments that this rule is unconstitutional. Finally, we determine that Bess failed to prove the district court's deadlock instruction was unconstitutionally coercive under the circumstances presented in this case.
¶65 Accordingly, we affirm.