State of Utah v.Fernandez

State of Utah v.Fernandez

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Felix G. Fernandez,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20010913-CA

F I L E D

(February 6, 2003)
 

2003 UT App 23

 

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Seventh District, Monticello Department

The Honorable Lyle R. Anderson

Attorneys: William L. Schultz, Moab, for Appellant

Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee

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Before Judges Billings, Orme, and Thorne.

ORME, Judge:

We rejected three of Defendant's four claims in the appeal of co-defendant Joseph Madsen. See State v. Madsen, 2002 UT App 345,¶¶4-6, 16, 57 P.3d 1134. The trial court's judgment on these issues is therefore affirmed. See State v. Thurman, 846 P.2d 1256, 1269 (Utah 1993).

"We review a trial court's determination whether to remove a juror for cause for an abuse of discretion." State v. Calliham, 2002 UT 86,¶47, 55 P.3d 573. "'So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the [Constitution] was violated.'" State v. Menzies, 889 P.2d 393, 398 (Utah 1994) (quoting Ross v. Oklahoma, 487 U.S. 81, 88, 108 S. Ct. 2273, 2278 (1988)) (alteration in original), cert. denied, 513 U.S. 1115, 115 S. Ct. 910 (1995). Therefore, "[t]o prevail on a claim of error based on the failure to remove a juror for cause, a defendant must demonstrate prejudice, viz., show that a member of the jury was partial or incompetent." Id.

Defendant's argument concerning the alleged bias of potential jurors--who were ultimately removed via peremptory challenge--has merit.(1) However, Defendant has not demonstrated that a juror who "actually sat for the trial was in some way partial or incompetent." Calliham, 2002 UT 86 at ¶47. Therefore, "even if the trial court erred in failing to remove those prospective jurors whom [Defendant] found objectionable, that error was harmless." State v. Carter, 888 P.2d 629, 649 (Utah), cert. denied, 516 U.S. 858, 116 S. Ct. 163 (1995).

Affirmed.

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Gregory K. Orme, Judge

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WE CONCUR:

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Judith M. Billings,

Associate Presiding Judge

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William A. Thorne Jr., Judge

1. We reiterate that "judges [should] exercise greater care in evaluating challenges for cause and [should] resolve legitimate doubts in favor of removal," even if this means "some jurors now removed by peremptory challenge will be removed instead for cause" and even if "the court will have to summon more prospective jurors for voir dire." Utah R. Crim. P. 18 advisory committee note (accompanying 2001 amendments to Utah Rules of Criminal Procedure). See also State v. Wach, 2001 UT 35,¶25, 24 P.3d 948 ("'[I]t is a simple matter to obviate any problem of bias simply by excusing the prospective juror and selecting another.'") (citation omitted).