Summary
In Shepherd, the defendant was aware that the challenged juror knew him, but failed to bring this to the court's attention.
Summary of this case from People v. Pena-RodriguezOpinion
Case No. 20060699-CA.
Filed January 15, 2009. Not For Official Publication
Appeal from the Fourth District, Provo Department, 051400527 The Honorable Samuel D. McVey.
Margaret P. Lindsay, Spanish Fork, for Appellant.
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee.
Before Judges Greenwood, Thorne, and Bench.
MEMORANDUM DECISION
Moses Shepherd appeals his convictions of aggravated burglary, a first degree felony, see Utah Code Ann. § 76-6-203 (2008), and criminal mischief, a class A misdemeanor, see id. § 76-6-106(2). Shepherd argues that he was denied his right to an impartial jury and that the district court erred in not granting a mistrial or new trial due to juror R.S.'s mid-trial recollection of a prior act of violence that Shepherd had committed against her husband. We affirm.
In response to the district court's questioning at jury voir dire, R.S. introduced herself as "I'm [R.S.], and my husband is [G.S.], and he is a painting contractor. I'm a house wife." R.S. further indicated that she did not have any "social, religious, neighborly or other such acquaintance" with Shepherd. Shepherd was present at voir dire but apparently did not indicate to his counsel that he knew either R.S. or G.S. or had any reason to doubt R.S.'s impartiality. R.S. was passed for cause and seated on the jury.
Overnight, R.S. remembered that G.S. had previously told her that Shepherd had once threatened him with a gun. The next morning, R.S. informed the district court about her recollection. The district court questioned R.S. out of the presence of the jury, and R.S. recounted a year-old conversation with G.S. in which G.S. had told her that Shepherd had pulled a gun during a high school fight some twenty-five years earlier. R.S. also informed the district court that she had not discussed the incident or the trial with G.S. after her recollection and that she could be a fair and impartial juror. At this time, Shepherd moved for a mistrial, which the district court denied. Shepherd then asked and was allowed to present his version of events. Shepherd told the district court that he remembered G.S., R.S., and the incident and claimed that it was G.S. who had threatened Shepherd with a gun because Shepherd was dancing with R.S. R.S. was called back into chambers for further questioning in light of Shepherd's assertions, at which time she stated that she had never met Shepherd. Shepherd renewed his motion for a mistrial, but the district court stated its belief that both R.S. and Shepherd were telling the truth as they remembered it and denied Shepherd's renewed motion. Trial continued with R.S. on the jury, and Shepherd was convicted. The district court later denied Shepherd's postjudgment motion for a new trial based on the incident.
The district court's denial of a motion for mistrial or new trial is reviewed on appeal to determine whether the court's ruling exceeded its permitted range of discretion. See State v. Calliham, 2002 UT 86, ¶ 42, 55 P.3d 573 ("The decision to grant or deny a mistrial . . . rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion."); State v. Bisner, 2001 UT 99, ¶ 31, 37 P.3d 1073 ("When reviewing a trial court's denial of a motion for a new trial, we will not reverse absent a clear abuse of discretion by the trial court." (internal quotation marks omitted)). Here, we agree with the State's argument that Shepherd waived any objection based on the gun incident by failing to explore the incident and his knowledge of R.S. and G.S. at voir dire, rendering the district court's decisions within the boundaries of its permitted discretion.
We note that the district court did not expressly rely on a waiver theory in reaching its decisions, although it did allude to Shepherd's failure to raise the issue during voir dire in its order denying Shepherd a new trial: "[Shepherd] did not disclose any of this during voir dire. . . ." Nevertheless, we may affirm the district court's rulings on any ground that is apparent from the record. See State v. Despain, 2007 UT App 367, ¶ 11, 173 P.3d 213 ("[A]n appellate court may affirm the judgment appealed from if it is sustainable on any legal ground or theory apparent on the record. This remains true even though such ground or theory . . . was not raised in the lower court[] and was not considered or passed on by the lower court." (alterations and omission in original) (citation and internal quotation marks omitted)).
It is established law in Utah that a criminal defendant cannot complain of an error that could have been avoided had the defendant brought the matter to the trial court's attention in a timely manner.See State v. Wach, 2001 UT 35, ¶ 40, 24 P.3d 948 ("This court has long maintained that a party cannot seek to reverse an unfavorable verdict by complaining of an error that the trial court could have corrected had it been timely informed of the error."). In the context of jury voir dire, this rule translates into a requirement that a criminal defendant explore known areas of potential bias with a prospective juror or else be deemed to have waived objection to the juror on grounds of bias.See, e.g., id.; State v. DeMille, 756 P.2d 81, 83 (Utah 1988) (holding that a defendant's failure to voir dire jurors on a foreseeable issue of bias or object to the court's failure to do so constituted a waiver of the bias question); State v. Miller, 674 P.2d 130, 131 (Utah 1983) (per curiam) (holding that a defendant who neither objected to allegedly improper voir dire nor sought permission to inquire further into prospective jurors' biases waived his claim of juror bias).
Here, R.S. revealed both her name and that of her husband during voir dire. The next day, Shepherd claimed to remember the gun incident, dancing with R.S., and G.S.'s involvement in the incident. Shepherd remembered G.S. by name, stating, "I remembered [G.S.] because he's a relative of a [D.S.] that was the same age as I was." Although the district court later "rate[d Shepherd's] credibility as low," Shepherd clearly stated that he remembered both G.S. and R.S. and some incident involving G.S., R.S., and a gun. Shepherd did not suggest that these memories were newly arisen or the product of R.S.'s disclosure. Shepherd thus admitted that he was aware of a potentially biasing issue relating to R.S. at the time of voir dire, and his "failure to voir dire [R.S.] on this quite foreseeable issue . . . constitutes a waiver and bars inquiry into the bias question." See DeMille, 756 P.2d at 83.
Because Shepherd waived any objection based on the gun incident by failing to explore the issue during voir dire, the district court acted within its discretion in denying Shepherd a mistrial or new trial. Accordingly, we affirm Shepherd's convictions.
WE CONCUR: Pamela T. Greenwood, Presiding Judge, Russell W. Bench, Judge.