State v. Zamora

State v. Zamora

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Ultiminio Zamora,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040177-CA
 

F I L E D
(April 28, 2005)
 

2005 UT App 196

 

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Third District, Salt Lake Department

The Honorable Dennis M. Fuchs

Attorneys: Patrick V. Lindsay, Provo, for Appellant

Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee

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Before Judges Davis, Orme, and Thorne.

PER CURIAM:

    Ultiminio Zamora appeals from his convictions of kidnaping and sexual assault charges after a jury trial. On appeal, Zamora asserts plain error and ineffective assistance of trial counsel, stemming from his exclusion from a portion of the voir dire.

    Most of the jury selection process took place in open court. However, a few members of the venire were interviewed in the trial court's chambers to follow up on the general venire questions. Zamora was not personally present in chambers, although his trial counsel was present and participated in the follow-up questioning. One of the potential jurors questioned in chambers was empaneled as a juror.

    Zamora first argues that the trial court committed plain error in failing to include him in the additional voir dire in chambers. To establish plain error, Zamora must show that there was an error, the error should have been obvious to the trial court, and the error was prejudicial. See State v. Hubbard, 2002 UT 45,¶32, 48 P.3d 953. Here, Zamora fails to show that the alleged error, if any, was obvious. Additionally, it appears there was no error because he waived his right to be present.

    Zamora asserts that he has an absolute right to be present at all voir dire conferences and that the infringement of this right was obvious. However, although Zamora has a right to be present during jury selection, the precise right he asserts has not been expressly recognized in Utah. See id. at ¶33. The court noted in Hubbard that, although a defendant has a right to be present during jury selection, it is an open question whether the right is so sweeping as to include required presence at sidebar conferences between a prospective juror, defense counsel, prosecution, and the trial court. See id. The United States Supreme Court has not determined that such a precise right is guaranteed under due process, and no Utah court has reached the issue. See id.

    Here, the additional voir dire in chambers is the equivalent of the sidebar conferences in Hubbard. Thus, there is no specifically recognized right for a defendant to be present during follow up voir dire either at a sidebar or in chambers. As a result, with the question still open, it cannot be the basis for plain error.

    Additionally, Zamora waived his right, if any existed, to be present in chambers by failing to assert it at the time. He did not personally assert his right, nor did his counsel object to his absence. Under Hubbard, this is sufficient to waive the right. See id. at ¶34. "A defendant knowing of a discussion must assert whatever right he may have to be present." Id. A trial court "'need not get an express on the record waiver from the defendant for every trial conference which a defendant may have a right to attend.'" Id. (quoting U.S. v. Gagnon, 470 U.S. 522, 528 (1985)). Waiver may be by word or deed. See id. Under the circumstances here, even if Zamora had the right he now asserts, he waived it by his silence.

    Zamora alternatively asserts that he received ineffective assistance of counsel. To establish ineffective assistance, Zamora must show that his counsel's performance was objectively deficient and that the deficient performance was prejudicial. See State v. Litherland, 2000 UT 76,¶19, 12 P.3d 92. Zamora fails to establish either prong, but his claim is most easily disposed of on the basis that he has failed to show prejudice.

Zamora argues that he was prejudiced by his counsel's failure to assure his presence at the voir dire in chambers because he was prevented from "making an informed decision regarding" the use of a for-cause or peremptory challenge regarding a specific juror. He asserts that the empaneling of the juror "would likely have had a profound effect" on the outcome of his case. The implication, not clearly asserted, is that he may have removed a specific juror.

    His assertion of prejudice is speculative and incomplete. He does not assert that his trial counsel was ineffective because he failed to remove this juror. Nor does he establish, or even argue, that this juror was in fact biased. He argues only that his absence prevented him from perhaps removing this juror and alleges only a likelihood of impact. Additionally, Zamora asserts that his right to be present at the additional voir dire is of such import that it should not be considered harmless. However, given that this precise right is not expressly recognized in Utah, he has not established harm.

    Accordingly, Zamora's convictions are affirmed.

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James Z. Davis, Judge

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Gregory K. Orme, Judge

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William A. Thorne Jr., Judge