State of Utah v. Calliham

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State of Utah v. Calliham, Case No. 20000391-CA, Filed May 3, 2001 IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Jordan Vance Calliham,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000391-CA

F I L E D
May 3, 2001 2001 UT App 143 -----

Seventh District, Monticello Department
The Honorable Lyle R. Anderson

Attorneys:
Happy N. Morgan, Moab, for Appellant
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

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Before Judges Greenwood, Jackson, and Billings.

BILLINGS, Judge:

Defendant Jordan Vance Calliham appeals his conviction of assault by a prisoner, a third degree felony, in violation of Utah Code Ann. § 76-5-102.5 (1999). Defendant first argues the direct file statute, Utah Code Ann. § 78-3a-601 (Supp. 2000), which grants district courts original jurisdiction over some juvenile offenses, did not grant the district court jurisdiction over the assault. The direct file statute grants the district courts "(1) . . . exclusive original jurisdiction over all persons 16 years of age or older charged by information or indictment with: (a) an offense which would be murder or aggravated murder if committed by an adult." Id. The statute also extends jurisdiction to "(3)(a) Any felony, misdemeanor, or infraction committed after the offense over which the district court takes jurisdiction under Subsections (1) or (2)." Id. (emphasis added).

Because Defendant committed the assault when he was seventeen, after he had been charged with murder, in violation of Utah Code Ann. § 76-5-203 (1999), and after the district court
had assumed jurisdiction, under subsection 78-3a-601(1)(a), over the murder charge, subsection 78-3a-601(3)(a) extended the district court's jurisdiction to the assault. Accordingly, we conclude the district court properly assumed jurisdiction.

Defendant next argues the district court failed to remove for cause jurors who were allegedly biased because they were related to law enforcement officers. To prevail on a claim of error based on a trial court's failure to remove prospective jurors for cause, a defendant must demonstrate that biased jurors served on the jury. See State v. Wach, 2001 UT 35,¶36. Because "any claim that the jury was not impartial must focus . . . on the jury ultimately seated," id., and because Defendant used his four peremptory challenges to remove these jurors, this claim fails.

However, Defendant also claims he was prejudiced because after he exhausted his peremptory challenges, he was unable to remove three impaneled jurors who were allegedly biased because they read local newspapers. Defendant further claims the district court failed to adequately voir dire these jurors to see if they were biased by what they read. However, to preserve juror bias for appeal, a party must not only exhaust peremptory challenges on jurors unsuccessfully challenged for cause, see State v. Baker, 935 P.2d 503, 507 (Utah 1997), but must also object to subsequently summoned jurors who may be biased. SeeWach, 2001 UT 35 at ¶¶40-41.

Although Defendant exhausted his peremptory challenges on the jurors he unsuccessfully challenged for cause, there is no evidence that he objected to the impaneled jurors because they read local newspapers or even "merely noted," id. at ¶39, that he would have exercised peremptory challenges on these jurors if the court had removed for cause the unsuccessfully challenged jurors. Moreover, Defendant did not seek further voir dire to explore potential bias from reading the newspapers. Because Defendant did not object to the impaneled jurors, he waived his claims that they were biased,(1)see id. at ¶40, and we accordingly decline to address his claims.(2)
 
 

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Judith M. Billings, Judge -----

WE CONCUR:
 

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Pamela T. Greenwood,
Presiding Judge
 

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Norman H. Jackson,
Associate Presiding Judge

1. Although on appeal we will review unpreserved claims for plain error, Defendant does not argue plain error. See Davis v. Grand County Serv. Area, 905 P.2d 888, 892 (Utah Ct. App. 1995) (noting that voir dire errors alleged for first time on appeal are reviewed "only against a plain error standard").

2. Defendant also argues his conviction should be reversed because recording problems resulted in numerous omissions in the trial transcript. Because we do not reach whether the impaneled jury was biased, we do not reach the sufficiency of the transcript. We also note Defendant does not argue that he in fact objected to the impaneled jurors because they read newspapers; rather, Defendant argues that his objections were not transcribed. Moreover, the transcript does show that, at Defendant's request, the trial court asked prospective jurors if they read newspapers. The court then asked if Defendant had further questions. Instead of requesting further voir dire in regard to the newspapers, Defendant moved to other matters.