State v. King

2006 UT 3
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, 	No. 20040727
Plaintiff and Petitioner,
v.
F I L E D
Gordon R. King,
Defendant and Respondent. 	January 13, 2006
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Third District, Salt Lake
The Honorable Leslie A. Lewis
No. 021900713
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Jeffrey S. Gray,
Asst. Att’y Gen., T. Langdon Fisher, Salt Lake City,
for plaintiff
Elizabeth Hunt, Salt Lake City, for defendant
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On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
INTRODUCTION
¶1 	Defendant Gordon King was convicted of attempted
forcible sexual abuse. 	Despite the fact that he had passed the
jury for cause, King appealed, arguing that the trial court erred
by failing to individually question two jurors who had indicated
that either they or a close friend or family member had been the
victim of abuse. 	The court of appeals reversed King’s
conviction, holding that the trial court had failed to fulfill
its duty of ensuring a fair and impartial jury. 	The State
petitioned for certiorari, arguing that King had failed to
preserve the issue of juror bias for appellate review and that
King was unable to establish plain error. 	We agree and
accordingly reverse.

No. 20040727 	2
BACKGROUND
¶2 	King was charged by information with aggravated sexual
abuse of a child, a first degree felony, after his daughter’s
friend reported that he had inappropriately touched her during a
sleepover at his home. 	King pleaded not guilty, and the case
proceeded to a jury trial.
¶3 	The trial judge began jury selection by asking whether
any of the prospective jurors were acquainted with any of the
parties or witnesses in the case. 	The trial judge then read the
information to the jury pool and asked whether the nature of the
case would cause any of them to believe that “they would be
unable to be fair and impartial.” 	Five prospective jurors
responded affirmatively. 	The trial judge asked each of these
prospective jurors follow-up questions to determine the extent of
any possible biases. 	After learning that two of the affirmative
responses resulted from the fact that either those prospective
jurors, their family members, or their close friends had
experienced instances of sexual abuse, the judge asked the entire
panel whether “there [was] anyone else who either ha[d] been the
victim of abuse or ha[d] had a family member or a close personal
friend who ha[d] been the victim of abuse.” 	Six additional
members of the jury pool raised their hands. 	The trial judge
asked each of them whether that experience “would interfere with
[their] ability to be fair and impartial.” 	Only one potential
juror responded affirmatively, and she was dismissed for cause.
¶4 	Despite the assurances from the remaining five
prospective jurors that they could be impartial, the trial judge
declared that she would like to individually question each of
them, as well as the initial five jurors who had indicated an
inability to be impartial, to determine the extent of any biases.
She instructed the jury pool to exit the courtroom and then
called in each individual juror who had affirmatively responded
to the inquiries regarding bias or abuse.
¶5 	The judge first interviewed the five jurors who
initially had indicated that they would have some difficulty
being fair and impartial due to the nature of the case. 	The
trial judge removed all but one of these five potential jurors
for cause, and King removed the remaining juror through use of a
peremptory challenge.
¶6 	The trial judge then began questioning the prospective
jurors who had indicated that they, a family member, or a close
personal friend had been a victim of abuse. 	Although the judge
individually questioned four of these prospective jurors, she

1 Indeed, defense counsel agreed with the trial judge when
she indicated that they had “probably talked to everyone else”
who had indicated some kind of experience with sexual abuse.
3 	No. 20040727
failed--apparently inadvertently--to question the other two.
Neither counsel for the defense nor counsel for the prosecution
pointed out the omission, 1 and the two jurors who had not been
subjected to any follow-up questioning regarding their experience
with abuse were ultimately empaneled on the jury.
¶7 	Before calling the entire jury pool back into the
courtroom, the trial judge asked King and the State the following
question: 	“To this point in time, do both sides pass the jury
for cause?” 	Counsel for both parties responded affirmatively.
The jury pool then returned to the courtroom, and the prospective
jurors discussed their occupations, marital status, and hobbies,
among other things. 	After the prospective jurors provided this
information, the trial judge gave counsel for each side the
opportunity to ask additional questions. 	Although King’s counsel
posed some additional questions, those questions did not address
any potential concerns about the two prospective jurors who had
admitted some experience with abuse but who had not been
individually questioned regarding that experience. 	Rather,
King’s counsel asked the jurors whether any of them had
experiences with King’s employer that would interfere with their
ability to act impartially and whether each prospective juror
would feel comfortable being judged by jurors with his or her
equivalent state of mind.
¶8 	After counsel for both sides indicated that they had no
further questions for the jury pool, the names of eight
prospective jurors were called, and the trial judge asked King’s
counsel if this was the jury that he selected. 	King’s counsel
responded, “It is, your Honor.” 	Accordingly, the remaining
prospective jurors were excused, and the jury was sworn.
¶9 	The jury returned a verdict of guilty on the lesser
included charge of sexual abuse of a child, a second degree
felony. 	Pursuant to section 76-3-402 of the Utah Code, the trial
court reduced King’s conviction to attempted sexual abuse of a
child, a third degree felony. 	King timely appealed his
conviction to the court of appeals, arguing that the trial court
had failed to ensure his right to a fair and impartial jury when
it allowed the two jurors who had not been individually
questioned to serve on the jury.
¶10 	The court of appeals reversed King’s conviction,
holding that “the trial court failed to fully satisfy its

No. 20040727 	4
responsibility to detect, probe, and eliminate juror bias during
the jury selection process.” 	State v. King, 2004 UT App 210,
¶ 1, 95 P.3d 282. 	In so holding, the court of appeals reviewed
the trial court’s empaneling of the jury for abuse of discretion,
id. ¶ 10, despite the fact that King had failed to raise any
objection to the two jurors during voir dire. 	The court of
appeals declared that our prior case law, which “impose[s] a
requirement for demonstrating prejudice” in those instances in
which a defendant failed to either object to a juror for cause or
use a peremptory strike to remove the juror, was “inapplicable.”
Id. ¶ 26 (citations omitted). 	It excused King’s failure to
object, reasoning that King had insufficient information on which
to base a challenge for cause “[b]ecause the trial court did not
fulfill its obligation to fully probe the jurors about their
potential prejudice.” 	Id.
¶11 	The State petitioned for certiorari, which we granted.
We have jurisdiction pursuant to Utah Code section 78-2-2(3)(a)
(2002).
ANALYSIS
¶12 	“On certiorari, we review the court of appeals’
decision for correctness, focusing on whether that court
correctly reviewed the trial court’s decision under the
appropriate standard of review.” 	Hansen v. Eyre, 2005 UT 29,
¶ 8, 116 P.3d 290 (internal quotation marks omitted). 	The State
contends that the court of appeals’ holding is erroneous because
it contravenes our prior case law, which applies plain error
review in those cases in which the defendant failed to object to
a juror for cause during voir dire. 	The State argues that
because King did not object to either juror during voir dire, we
cannot review the trial court’s actions for abuse of discretion.
Rather, we must review its actions for plain error, which
requires that King establish actual prejudice. 	We agree.
¶13 	We have consistently held that a defendant who fails to
preserve an objection at trial will not be able to raise that
objection on appeal unless he is able to demonstrate either plain
error or exceptional circumstances. 	See State v. Cram, 2002 UT
37, ¶ 9, 46 P.3d 230; Monson v. Carver, 928 P.2d 1017, 1022 (Utah
1996). 	This rule is designed to (1) ensure that the trial court
has “an opportunity to address the claimed error, and if
appropriate, correct it,” and (2) inhibit a defendant from
“forego[ing] . . . an objection with the strategy of enhancing
the defendant’s chances of acquittal and then, if that strategy
fails, . . . claiming on appeal that the [c]ourt should reverse.”
Cram, 2002 UT 37, ¶ 10 (internal quotation marks omitted).

5 	No. 20040727
Stated another way, under our preservation rule, “‘defendants are
. . . not entitled to both the benefit of not objecting at trial
and the benefit of objecting on appeal.’” 	Id. ¶ 10 (quoting
State v. Brown, 948 P.2d 337, 343 (Utah 1997)).
¶14 	The preservation rule is grounded in our adversarial
system of justice, which looks to the parties to zealously
advocate their cause before an impartial fact finder. 	“The rule
that points not argued will not be considered is more than just a
prudential rule of convenience; its observance, at least in the
vast majority of cases, distinguishes our adversary system of
justice from the inquisitorial one.” 	United States v. Burke, 504
U.S. 229, 246 (1992) (Scalia, J., concurring); see also
Brinkerhoff v. Schwendiman, 790 P.2d 587, 589 (Utah Ct. App.
1990) (“It is axiomatic in our adversary system that a party must
raise an objection in an earlier proceeding or waive its right to
litigate the issue in subsequent proceedings.”); Polster v.
Griff’s of Am., Inc., 520 P.2d 745, 747 (Colo. 1974) (“[T]he
trial court . . . should not assume the role of advocate . . . .
These are the basic functions of trial counsel in our adversary
system of justice and underlie the rationale of the
contemporaneous objection rule.”); Reynolds v. City Hosp., Inc.,
529 S.E.2d 341, 350 (W. Va. 2000) (“In the end, the
contemporaneous objection requirement serves an important purpose
in promoting the balanced and orderly functioning of our
adversarial system of justice.”).
¶15 	In this case, the court of appeals refused to apply
plain error review, holding that the trial court’s “duty to
detect and investigate the potential for partiality so that
counsel has the opportunity to intelligently and effectively
exercise challenges to jurors . . . is essentially independent of
counsel’s actions.” 	State v. King, 2004 UT App 210, ¶ 25, 95
P.3d 282. 	This holding is tantamount to a declaration that the
jury selection process is distinct from the general adversarial
system of justice and is therefore exempt from the procedures
governing that system. 	We disagree.
¶16 	While we acknowledge that the jury selection process
has some unique attributes, we do not believe that they warrant
its exclusion from the procedural requirements of the adversarial
system. 	To the contrary, it is because of those unique
attributes that the jury selection process is as dependent on the
procedural safeguards of the adversarial system, if not more so,
as the remainder of the trial. 	Although trial courts have a duty
to “‘see that the constitutional right of an accused to an
impartial jury is safeguarded,’” id. ¶ 15 (quoting State v.
Dixon, 560 P.2d 318, 319-20 (Utah 1977)), a trial court’s lack of

No. 20040727 	6
familiarity with the specific facts of a case at the beginning of
a trial suggests that the selection of an impartial jury depends
heavily upon the parties’ participation and vigilance in
detecting possible biases. 	See State v. Moton, 749 P.2d 639, 642
(Utah 1988) (“The brilliance of the adversarial system is that
each side tries to select a jury which is most favorable to its
position. 	Thus, each side shows its best profile, and justice
sees truth full face.”).
¶17 	Moreover, in contrast to the extremely difficult task
of ascertaining and remedying any juror bias after a verdict has
been rendered, we have repeatedly recognized the ease with which
any allegation of juror bias may be investigated and remedied
during the jury selection process. 	See State v. Saunders, 1999
UT 59, ¶ 51, 992 P.2d 951 (“[T]he scope of judicial discretion
accorded a trial judge must be evaluated in light of the ease
with which all issues of bias can be dispensed by the simple
expedient of replacing a questionable juror with another whose
neutrality is not open to question.”). 	And relying on counsel to
raise all possible objections to the jurors before the selection
process concludes will allow the trial court to easily and
effectively remedy any claim of bias, thereby ensuring the
defendant an impartial jury.
¶18 	In summary, because of counsel’s advantaged position
and the relative ease with which any claim of bias can be
remedied during the selection process, we hold that, just as with
the trial process itself, the jury selection process is subject
to the procedural safeguards of the adversarial system of
justice. 	We accordingly hold that objections to the trial
court’s conduct during voir dire are not exempt from the
preservation rule.
¶19 	Before proceeding to apply our holding to the facts
presented here, we pause to note that our holding does not negate
the trial court’s duty to ensure a fair trial. 	To the contrary,
we reemphasize that once a for-cause challenge is raised, a trial
court has an obligation to allow counsel to further explore any
potential prejudices and to be lenient in granting challenges for
cause. 	See State v. Baker, 935 P.2d 503, 509 (Utah 1997)
(Stewart, A.C.J., concurring) (“[I]t is absolutely imperative
that trial judges once and for all realize that for-cause
challenges to jurors should be viewed liberally.”). 	Moreover,
even when counsel fails to raise a for-cause challenge to a
prospective juror, a trial court may nevertheless have a duty to
further investigate or remove the juror sua sponte if he or she
has “express[ed] a bias or conflict of interest so strong or

2 Although we recognize that King affirmatively represented
to the trial court that he did not have an objection to the two
jurors he now challenges on appeal, thereby implicating the
invited error doctrine, see State v. Winfield, 2006 UT 4, ¶ 21,
128 P.3d 1171; State v. Lee, 2006 UT 5, ¶ 20, 128 P.3d 1179, we
decline to apply that doctrine in this case because the State
failed to raise it in its brief. 	See State v. Casey, 2003 UT 55,
¶ 39 n.10, 82 P.3d 1106 (noting that while the invited error
doctrine “may preclude application of the plain error analysis,”
the court will refuse to consider it when “neither party raised
this question below or in their briefs or at oral argument”); see
also Winfield, 2006 UT 4, ¶ 23 n.6.
7 	No. 20040727
unequivocal as to inevitably taint the trial process.” 	State v.
Litherland, 2000 UT 76, ¶ 32, 12 P.3d 92.
¶20 	Having concluded that any challenge to a juror’s
impartiality is subject to the preservation rule, we now review
King’s claims. 	Because King failed to preserve his objection to
the jury panel during jury selection by objecting to the jurors
for cause, we will reverse only if King is able to demonstrate
either that plain error occurred or that exceptional
circumstances exist. 	See Cram, 2002 UT 37, ¶ 9. 2 	Because King
has failed to allege any exceptional circumstances, we limit our
analysis to the issue of plain error.
¶21 	To prevail under plain error review, a defendant must
demonstrate three elements. 	First, he must establish that “an
error did in fact occur.” 	State v. Olsen, 860 P.2d 332, 334
(Utah 1993). 	Second, he must establish that “the error should
have been obvious to the trial court.” 	Id. 	Third, the defendant
must establish that the error was harmful, i.e., that there is “a
reasonable likelihood” that he would have enjoyed a more
favorable outcome absent the error. 	State v. Verde, 770 P.2d
116, 122 (Utah 1989).
¶22 	We turn first to a discussion of whether an error
occurred. 	To establish that the trial court erred, the defendant
must demonstrate that the trial court abused its discretion,
acting “‘beyond the limits of reasonability.’” 	Olsen, 860 P.2d
at 334 (quoting State v. Hamilton, 827 P.2d 232, 239-40 (Utah
1992)). 	In this case, the two jurors King now challenges
indicated that either they, a family member, or a close personal
friend had been a victim of abuse. 	Relying on our statement in
State v. Wach, 2001 UT 35, ¶ 29, 24 P.3d 948, where we recognized
that “a question of potential bias arises when a prospective
juror indicates that he or she has been the victim of a similar
crime,” King contends that the trial court abused its discretion

No. 20040727 	8
in failing to further question those jurors or remove them for
cause sua sponte. 	We reject this argument in light of our
discussion of the jury selection process in Litherland, 2000 UT
76. 	In Litherland, we declared:
It is generally inappropriate for a trial
court to interfere with counsel’s conscious
choices in the jury selection process,
notwithstanding the existence of a reasonable
basis for objecting to those jurors. 	Only
where a juror expresses a bias or conflict of
interest that is so strong or unequivocal as
to inevitably taint the trial process should
a trial court overrule trial counsel’s
conscious decision to retain a questionable
juror.
Id. ¶ 32.
¶23 	We previously stated that “[w]hen comments are made
which facially question a prospective juror’s partiality or
prejudice, an abuse of discretion may occur unless the challenged
juror is removed by the court or unless the court or counsel
investigates and finds the inference rebutted.” 	State v. Cobb,
774 P.2d 1123, 1126 (Utah 1989). 	But this statement specifically
addresses a situation in which a for-cause challenge has been
made during the jury selection process. 	See id. at 1125; see
also Wach, 2001 UT 35, ¶¶ 18, 27. 	Where a facial question of
partiality is raised, but counsel does not object to the juror or
request additional questioning, the trial court does not abuse
its discretion by failing to sua sponte remove the prospective
juror for cause unless the juror has expressed a “bias . . . so
strong or unequivocal as to inevitably taint the trial process.”
Litherland, 2000 UT 76, ¶ 32.
¶24 	While the jurors’ responses in this case would have
been sufficient to support a request by counsel for additional
questioning and may have even justified removing the jurors for
cause, they were not “so strong or unequivocal as to inevitably
taint the trial process.” 	Id. 	We therefore hold that the trial
court did not abuse its discretion in failing to further
investigate or remove the jurors sua sponte. 	Because King has
failed to establish the first element necessary to succeed on his
claim of plain error, we need not consider the remaining two
elements.
¶25 	King also raises a claim of ineffective assistance of
counsel, asserting that his trial counsel was deficient for

9 	No. 20040727
failing to suggest additional questions or to challenge the
jurors during the selection process. 	Because the court of
appeals did not consider this issue in the proceedings below,
however, we decline to address it. 	Instead, we remand this case
to the court of appeals so that it may consider King’s claim of
ineffective assistance of counsel. 	On remand, the court of
appeals should also consider any other issues properly raised but
not previously addressed in its original opinion.
CONCLUSION
¶26 	We hold that the court of appeals erred in refusing to
apply plain error review and in concluding that the trial court
failed to protect King’s right to a fair and impartial jury.
Pursuant to our preservation rule, King must demonstrate plain
error on appeal because he failed to raise any objection to the
jurors in the trial court. 	Although the responses of the jurors
may have been sufficient to support a request by King that they
be removed for cause, they were not sufficient to support a
determination that the trial court committed plain error by
failing to sua sponte question them further or remove them for
cause. 	Accordingly, we reverse the judgment of the court of
appeals and remand the case for consideration of King’s
ineffective assistance of counsel claim.
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¶27 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.