Case Information
*1 IN THE UTAH COURT OF APPEALS
‐‐‐‐ ooOoo ‐‐‐‐ Utah, ) OPINION
)
Plaintiff Appellee, ) Case No. ‐ )
v. ) F L E D
) (August 30, 2012) Tevita F. Tafuna, )
) UT App 243 Defendant Appellant. )
‐‐‐‐‐
Third District, West Jordan Department, Honorable Stephen L. Roth
Attorneys: Ronald Fujino, Salt Lake City, Appellant
Mark L. Shurtleff Kenneth A. Bronston, Salt Lake City, Appellee ‐‐‐‐‐
Before Judges Davis, Thorne, Christiansen.
THORNE, Judge: Tevita F. appeals his conviction one count aggravated robbery, first degree felony. generally Utah Code Ann. § ‐ (2008). affirm.
BACKGROUND
¶2 On October attended Halloween private residence in Sandy, Utah. One residents discovered outside resident’s bedroom door, apparently standing guard. When resident pushed past open door, observed companion, PJ Valdez, rifling through things. At this *2 point, pulled a knife. As Tafuna and Valdez, both brandishing knives, attempted leave party with goods stolen bedroom, a melee ensued Valdez and some guests. Several people, including Tafuna, wounded before police arrived. charged with aggravated robbery a weapons offense was
tried before jury October The State’s evidence against included his leather coat, which witness had turned police day Halloween party. leather coat, police had wallet containing multiple identification cards. The parties reached pretrial stipulation would be mentioned trial.
¶4 On first day trial, prior calling its first witness, came the attention one jury members had spoken with some the outside courtroom. The held ‐ chambers conference juror parties. The juror stated he had turned down the wrong hallway, encountered whom he mistook for fellow jurors, engaged small talk them for approximately two minutes before everyone involved realized mistake. The explained,
I recall thing discussed down there—I got this—we’re waiting been waiting. One first guys said, “I here since 8:00 morning.” And said, “Well, you someplace like Chicago in airport, you know, blizzard.” So it’s—we were discussing airport carpeting. realized mistake and that’s all discussed. then apologized incident, court
accepted juror’s apology, concluded, “It ain’t going happen again, I’ll guarantee you that.”
¶5 After left chambers, both agreed “a pretty innoxious encounter.” nevertheless suggested it “inappropriate” switch available alternate juror, but added, “I think feels bad both sides he made mistake.” counsel responded,
Yeah, think that I don’t feel differently. Well, nothing inappropriate happened, that’s my feeling. But you could tell he takes it very seriously. It honest mistake. He
feels so badly about it. He said it wouldn’t happen again. I
think he’s going to conscious and good juror. The court warned the juror not to discuss the the jurors and allowed the to remain the jury. The juror went on to as the jury foreperson.
¶6 During the trial, the State presented testimony from detective who had investigated the Halloween incident. the State failed to apprise detective about the parties’ stipulation regarding the identification cards found in coat, the asked the detective if he had received any evidence after October replied, “A couple iPods, cellphone, leather coat, wallet inside the leather coat people—several different people type IDs.” The immediately changed the subject asking the detective the iPods, and no further reference was made to identification cards. moved mistrial, arguing mention identification cards
violated parties’ stipulation suggested to jury had additionally been involved criminal identity theft. The court denied motion, reasoning reference was fleeting was not emphasized by either side, it was deliberate part, reference would cause no injustice Tafuna. court gave counsel option of requesting curative instruction, which counsel declined so as “emphasize negative.” Nevertheless, later trial, withdrew coat its contents evidence court instructed jury, “The jacket came you’re to—you’re disregard relating it or—to jacket or anything jacket. And it’s stricken if it never entered into record this point.”
¶8 On third day trial, just before jury sent deliberate, Tafuna’s raised potentially tainted again, arguing district should replaced alternate “in abundance of caution.” denied request, stating no objection ‐ chambers conference remained convinced untainted by contact witnesses. jury convicted aggravated robbery, [1] now appeals.
ISSUES AND STANDARDS OF REVIEW first argues court erred by allowing who had
interacted witnesses serve on jury. Whenever a juror’s
interaction a witness “goes beyond a mere incidental, unintended, brief
contact, is rebuttable presumption prejudice, . . . counteract this
presumption prosecution must prove unauthorized contact did not
influence juror.”
State v. Allen
,
¶10 Tafuna also argues court erred refused grant mistrial
State elicited coat.
review denial mistrial motion abuse discretion.
See State v. Duran
,
ANALYSIS
I. Contact Between Juror Witnesses
¶11 Tafuna’s first argument on appeal erred allowing a
who conversed outside courtroom Tafuna’s
jury. Utah law contacts between jurors has described as
“rigorous.”
Logan City v. Carlsen
(Utah Ct. App. 1990) (Orme, J.,
concurring);
see Pike
1985) (“We long taken strict approach assuring constitutional guarantee fair trial be
compromised improper contacts between jurors witnesses, attorneys, or court
personnel.”). “[A] rebuttable presumption prejudice arises unauthorized
contact during trial witnesses, attorneys personnel jurors which
apparently dismissed weapons charge at close on
motion. That charge appeal.
*5
goes beyond mere incidental, unintended, brief contact.”
Pike
,
presumption of juror prejudice arose this case. However innocuous its subject
matter, the two minute conversation the juror the clearly
“more than brief, incidental contact where only remarks of civility exchanged.”
See State v. Erickson
,
service, also see no error subsequent refusal replace juror Tafuna’s counsel later made such request immediately prior jury deliberations. reason offered by counsel for this request that it should be done “in [an] abundance caution.” This request did obviate counsel’s prior express waiver objection juror’s service or otherwise place on notice specific impending error. Counsel’s request also raised no circumstances than abundance caution that might have required removal at late stage trial. [4] ¶17 For these reasons, determine counsel affirmatively waived any objection juror’s service thereby arising improper 3. counsel’s statement establishes sound tactical reason for failing to insist juror’s removal. Counsel’s assessment “takes very seriously” “feels so badly it” recognized possibility might have compensated for by treating greater scrutiny than might have otherwise. This reasonable basis failing challenge juror defeats cursory alternative argument decision constituted ineffective assistance by trial counsel. generally Clark UT ¶ 89 (“[D]efendant must overcome strong presumption [his] counsel rendered adequate assistance by persuading no conceivable tactical basis counsel’s actions.” (second alteration original) (internal quotation marks omitted)). can envision circumstances might required revisitation issue,
such by scope duration their contact exceeded described juror. no such circumstances alleged case. contact. Accordingly, we affirm court’s handling of contact issue.
II. Denial of Motion for Mistrial ¶18 Next, Tafuna argues that erred denying motion for mistrial. Tafuna moved for a mistrial a detective testified, violation of the parties’ pretrial stipulation of exclusion, that had received “several different people type IDs” that had found a wallet coat. denied motion, concluding single reference an intentional violation of stipulation, neither had emphasized improper testimony, Tafuna would suffer no injustice.
¶19 “We will reverse court’s denial a motion for mistrial absent an abuse discretion.” Robertson 1997). Here, by court, offered good faith explanation testimony, neither side emphasized repeated single reference identification cards. Further, although we agree negative inferences could arise identification card testimony, those inferences are somewhat speculative.
¶20 The identification card also less clear than portrays on appeal. bare statement “several different people type IDs” could indicate that possessed identification cards belonging other persons besides himself, but it suggest wallet contained different identification cards belonging Tafuna—e.g., driver license, school ID, work ID. With no further suggestion by identification evidence additional wrongdoing by Tafuna, we see no reason believe jury have assumed anything than innocent interpretation ambiguous card testimony. “Unless review record shows [district] court’s decision plainly
wrong so likely influenced jury defendant cannot said fair trial, we will find court’s decision abuse of discretion.” Robertson light reasons expressed district ambiguity detective’s reference, cannot say reference deprived fair trial. Accordingly, affirm denial his motion mistrial.
CONCLUSION
¶22 Tafuna’s counsel allowing potentially tainted to affirmatively declined object after becoming aware extent contact witnesses. This decision constituted waiver issue defense counsel, properly rejected trial counsel’s later attempt raise again two days trial. Further, acted within its discretion denying motion mistrial where single reference inadvertent fleeting any prejudice arising ambiguous reference speculative. For these reasons, we affirm conviction.
____________________________________
William A. Thorne Jr., Judge
‐‐‐‐‐
¶23 WE CONCUR:
____________________________________
James Z. Davis, Judge
____________________________________
Michele M. Christiansen, Judge