Memorandum Decision
T1 Thamer Jaber Almansor appeals his conviction for misdemeanor sexual battery on three grounds. First, he contends that the trial court committed plain error in failing to adequately question a potential juror, who later became the jury foreperson, during voir dire. Second, Almansor argues that the trial court either abused its discretion or committed plain error when it proceeded to trial despite a defense witness's failure to appear. Finally, he asserts that the jury's verdict was produced by undue pressure or coercion by the trial court. We affirm.
I. Juror Voir Dire
T2 Almansor contends that the trial court erred when it failed to adequately question Juror 10, who later became the jury foreperson, about any bias or a conflict of interest inherent in his employment,. Almansor himself failed to ask the court to seek further information from this juror and so claims the court plainly erred in failing to do so on its own.
T3 During voir dire, Juror 10 reported that he was an associate director at Salt Lake County Criminal Justice Services. In response to the trial court's question about whether any jurors had family members or close friends in law enforcement, Juror 10 explained that in his employment, he had "contact with prosecutors, defense attorneys, police officers, [and] county government related to criminal justice." In response to a followup question, however, he assured the court that nothing about his employment "would affect [his] ability to be impartial in this jury ... to any degree." Defense counsel did not request that the court ask any additional questions of this juror, nor did he ask that Juror 10 be removed from the panel for cause. As a consequence, Almansor has not preserved for review his claim about bias or conflict of interest. See Turner v. University of Utah Hosps. & Clinics,
14 Accordingly, we will only consider whether the court committed plain error in failing to question Juror 10 further. To prevail on a claim of plain error, an appellant must establish that "(i) [aln error exists; (i) the error should have been obvious to the trial court; and (#i) the error is harmful, ie., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined." State v. Dunn,
15 The Utah Supreme Court has outlined the trial court's responsibilities when a prospective juror's response during voir dire raises a question of potential bias and trial counsel has neither objected for cause nor requested follow-up questioning. Recognizing that "[i]t is generally inappropriate for a trial court to interfere with counsel's conscious choices in the jury selection process," the supreme court has held that a trial court need not sua sponte remove the juror for cause or otherwise act to rebut the inference of bias unless "the juror has expressed a bias . so strong or unequivocal as to inevitably taint the trial process." King,
16 Almansor asserts that Juror 10's employment with Salt Lake County Criminal Justice Services on its face indicated a "strong or unequivocal" bias sufficient to have warranted further questioning or even removal by the trial court. Almansor at
II. Defense Witness's Failure to Appear
T7 Almansor next claims that the trial court either abused its discretion or committed plain error in proceeding to trial after Almansor informed the court that one of his witnesses had failed to appear. The City asserts that Almansor has waived this claim because he twice represented to the court his readiness to proceed to trial and he failed to request a continuance of trial.
8 On the morning of trial, Almansor and the City each represented to the trial court that they were ready to proceed to trial. Jury selection commenced, and it was not until after the jury had been impaneled and sworn that Almansor first informed the trial court that one of his witnesses had not arrived. The court adjourned for a twenty-minute recess so that Almansor could try to contact the witness. After he was unable to do so, the trial court said, "[WJe'll just go on with the trial, it is what it is, I mean, that happens." Almansor did not request a continuance or ask the court to take any steps to procure the witness (such as issuing a bench warrant, for example); rather, he simply indicated his assent when the court then asked if the defense was ready to proceed.
T9 Almansor's claim that the trial court abused its discretion in proceeding to trial fails for a number of reasons. First, Almansor has not demonstrated that the witness had in fact been subpoenaed for his trial, even though he describes her as "hostile" due to her friendship with the complaining witness. The only subpoena in the record required the witness's appearance at an earlier trial setting that had been continued, and Almansor has not pointed to any other place in the record that supports his contention that he subpoenaed the witness for this setting.
110 Second, and more importantly, even if Almansor did subpoena the witness, once he was aware that she had not appeared, he failed to request a continuance or otherwise ask the court to procure her appearance. Almansor asserts that such a motion would have been futile because the trial court had already indicated its intent to move forward with trial when the court said, "[WJe'll just go on with the trial, it is what it is ..., that happens." The court, however, merely responded to Almansor's counsel's statement that he was "in a bit of a quandary" about what to do in the absence of his witness. Nothing about the court's statement foreclosed Almansor's opportunity (and responsibility) to request a continuance or to seek the court's assistance in procuring the witness, especially as Almansor had not yet made any such requests to which the court's
111 Plain error, however, requires a showing of prejudice, State v. Dunn,
III. Verdict Coercion
{12 Finally, Almansor asserts that the Jury's verdiet was the product of undue pressure or coercion by the trial court. In particular, Almansor attempts to assign error to the court's method of responding to the jury's indication that it was split. We conclude that the court's response to the deadlocked jury was invited. But based on a review of the totality of the circumstances, including the court's instructions to and communications with the jury throughout the trial, we also determine that the verdict was not the result of trial court pressure or coercion.
113 Shortly after the jury was impaneled and prior to the presentation of any evidence, the trial court instructed that "[it is the responsibility of the jury ... to reach a verdict based upon the evidence" and in accordance with the instructions that would later be given. Following the presentation of evidence, the court instructed the jury on the applicable law and the process it should follow in reaching a decision. Instruction 18, in particular, gave the jurors detailed advice on how they should deliberate:
When you go into the jury room to deliberate, discuss the evidence and speak your mind with each other. Open discussion should help you reach a unanimous agreement on a verdict. Listen carefully and respectfully to each other's views and keep an open mind about what others have to say.
I recommend that you do not commit yourselves to a particular verdict before discussing all of the evidence. Try to reach unanimous agreement, but only if you can do so honestly and in good conscience. If there is a difference of opinion about the evidence or the verdict, do not hesitate to change your mind if you become convinced that your position is wrong. On the other hand, do not give up your honestly-held views about the evidence simply to agree on a verdict, to give in to pressure from other jurors or to just get the case over with. In the end, your vote must be your own.
*852 Because this is a criminal case, every single juror must agree with the verdict before the defendant can be found guilty or not guilty. In reaching your verdict, you may not use methods of chance, such as drawing straws or flipping a coin; rather, the verdict must reflect your individual, careful and conscientious judgment as to whether the evidence presented by the prosecutor proved each charge beyond a reasonable doubt.
(Emphasis added.)
114 Approximately two-and-a-half hours after the jury was excused to deliberate, the trial court notified the parties that "we have a pretty deadlocked jury." The court explained that "an hour-and-a-balf ago"-an hour after deliberations began-the jurors "wrote a note" to the court saying "they were split." At that time, the court "told them simply to continue to deliberate." The court asked the parties to return to the courtroom because the court was "a little pessimistic about [the jury's] ability to reach a verdict" and it wanted direction from counsel on whether it should "give an Allen instruction"
15 The court brought in the jurors and informed them that it was aware that they had not yet been able to reach a verdict. The judge then asked the foreperson: "Do you believe there's a possibility, if you were to go back and continue deliberating, that you would be able to reach a verdict?" The foreperson responded, "I think ... if we had ten minutes, I would know the answer to that." After confirming that the parties had no objection to sending the jury back to answer that question, the jury was excused on the foreperson's representation to the court that the jurors would discuss whether they "would be able to become unanimous or not." About twenty minutes later, the jury returned with the guilty verdict.
116 Almansor argues that the jury was coerced or pressured to reach a verdict by the trial court's emphasis on unanimity in its instructions and its direction that the jury continue deliberating after it had indicated that it was deadlocked. He asserts that the shift from deadlock to verdict in twenty minutes is evidence of that coercion. Almansor also claims that the court's decision to poll the jury and its subsequent exchange with the foreperson may have caused the jury to feel as though it had to reach a verdict within ten minutes. The City responds that Alman-sor essentially invited any error the trial court may have made by stating, in essence, that he would defer to the court's judgment on how to handle the deadlock issue and then voicing no objection to how the court proceeded. But even in the absence of any invitation by Almansor, the City maintains, all of the jury instructions correctly stated the law and because the jury received no further instruction on how to reach a verdict after it indicated its split, but instead was only asked if it could reach a verdict, the court did not coerce or pressure the jury. We conclude, based on Almansor's response to the court's questioning about how to address the jury's apparent divide and his si
T17 "[A] party cannot take advantage of an error committed at trial when that party led the trial court into committing the error." State v. Geukgeuzian,
118 Moreover, we are convinced that the court's instructions to and interactions with the jury, as a whole, do not support a conclusion that the court coerced the verdict. Thus, under the totality of the circumstances, defense counsel's expression of confidence in the trial court's exercise of its judgment on how to handle the jury deadlock proved to have been warranted.
19 The trial court's jury instructions, particularly Instruction 18, had already properly informed the jury of its role as the finder of fact regarding Almansor's guilt or innocence and of the requirement for a unanimous verdict to either conviet Almansor or acquit him. Instruction 18 did not overemphasize una nimity or instruct the jury to reach a verdict at any cost; rather, it told the jurors to "Itlry to reach unanimous agreement" but only if each of them "can do so honestly and in good conscience." And while each juror was encouraged to "speak your mind" in the process of deliberation, the jurors were also advised to "[lJisten carefully and respectfully to each other's views." In particular, they were cautioned not to "give up ... honestly-held views about the evidence simply to agree on a verdict" or "to give in to pressure from other jurors ... to just get the case over with."
120 Then, onee the jury reported that it was divided, the trial court made no effort to foree a decision. Although the court directed the jury to keep deliberating after first being advised that there was a split, that direction came after the jury had been working for just one hour and was not accompanied by any further instruction or any implication that the jury must reach a verdict. When the jury still had not reached a consensus after another hour-and-a-half had passed, the court decided to call counsel back to seek input on how to respond. At that point, the court indicated its concern that it did not want the response "to be coercive." After giving the attorneys an opportunity to weigh in, the court elected to poll the jurors. This occurred approximately three hours after the jury had been excused to deliberate. During the polling process, the court did not ask for a breakdown of the split nor did it ask any of the jurors to change his or her position or otherwise imply that any of the jurors should do so. Furthermore, the court did not explicitly communicate an intent to keep the jury until it reached a verdict; indeed, its questions about the likelihood of reaching a unanimous verdiet could be viewed as indicating the court's willingness to release the jury if it could not reach a consensus. And it was only upon the foreperson's representation that the jurors needed a few minutes to discuss whether a verdiet was possible that the jury was sent back to the jury room. Before excusing them, however, the court clarified that the purpose was to "resolve whether [they] would be able to become unanimous or not." Although the fact that
121 Finally, neither the trial court's instructions prior to deliberations nor its response to the jury's announcement that it was split create the type of cirenmstances that have been deemed coercive. Seq, eg., State v. Ginter,
123 In contrast to those cases, the trial court here gave no Allen instruction. And the initial instructions cautioned the jurors to decide the case only if they could "do so honestly and in good conscience" and without "giviing] up ... honestly-held views about the evidence simply to agree on a verdict, to give in to pressure from other jurors or to just get the case over with." Furthermore, the last exchange the jury heard before it retired to deliberate for the last time implied that deliberations would cease if the jury decided it could not reach a verdict. Therefore, the totality of the interactions between the court and the jury "conveyed the idea that the jury did not have an absolute duty to reach a verdict." See State v. Dalton,
{24 As a final matter, we note that in considering the options for responding to the jury deadlock, the trial court stated, "I don't want there to be any coercion on any part with regard to pressure by jurors and my sense is that there may be a belief that that's going on." Although the wording suggests that the court may have been concerned about the possibility that there was pressure among the jurors themselves, neither party followed up on the court's comments or expressed any concerns about coercion inside the jury room. Furthermore, nothing in the record, aside from this statement, suggests pressure on the jurors. Almansor now asserts on appeal that "[the judge was aware that coercive tactics were being used amongst the jurors, one of whom was well-versed in criminal law and procedures," but
125 In the absence of any objections or concerns raised by counsel regarding pressure or coercive tactics amongst the jury members, our foeus on appeal must remain on the trial court's interactions with the jury. See generally Jessop v. Hardman,
26 In summary, we conclude that Alman-sor invited the trial court to poll the jury and did not object to the court's decision to send the jury back to determine if it could reach a verdict. In any event, nothing in the trial court's interactions with the jury after the jury indicated that it was split evidences any undue pressure or coercion of the jury by the court.
127 For the foregoing reasons, we affirm Almansor's conviction.
Notes
. Although the City contends that Almansor has waived any claim regarding Juror 10's selection for the jury under the cure-or-waive rule, that rule has been replaced by the one adopted in Turner v. University of Utah Hospitals & Clinics,
. Almansor's counsel represented to the trial court that the witness had "been served a subpoena," but he did not address whether the witness had been subpoenaed for this trial setting or only for the earlier setting. Counsel's statement that he had last "spoken to her some time ago when this case was first set" does not resolve the question either way.
. "An Allen charge is a supplemental instruction ... designed to encourage a divided jury to agree on a verdict." Hooks v. Workman,