State v. Tafuna

IN THE UTAH COURT OF APPEALS

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State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20090105‐CA
)
v. ) FILED
) (August 30, 2012)
Tevita F. Tafuna, )
) 2012 UT App 243
Defendant and Appellant. )

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Third District, West Jordan Department, 071402390
The Honorable Stephen L. Roth

Attorneys: Ronald Fujino, Salt Lake City, for Appellant
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Davis, Thorne, and Christiansen.

THORNE, Judge:

¶1 Tevita F. Tafuna appeals from his conviction on one count of aggravated robbery,
a first degree felony. See generally Utah Code Ann. § 76‐6‐302 (2008). We affirm.

BACKGROUND

¶2 On October 27, 2007, Tafuna attended a Halloween party at a private residence in
Sandy, Utah. One of the residents discovered Tafuna outside the resident’s bedroom
door, apparently standing guard. When the resident pushed past Tafuna to open the
door, he observed Tafuna’s companion, PJ Valdez, rifling through his things. At this
point, Tafuna pulled a knife. As Tafuna and Valdez, both brandishing knives,
attempted to leave the party with goods stolen from the bedroom, a melee ensued
between Tafuna and Valdez and some of the other party guests. Several people,
including Tafuna, were wounded before police arrived.

¶3 Tafuna was charged with aggravated robbery and a weapons offense and was
tried before a jury in October 2008. The State’s evidence against Tafuna included his
leather coat, which a witness had turned in to police the day after the Halloween party.
In the leather coat, police had found a wallet containing multiple identification cards.
The parties reached a pretrial stipulation that the identification cards would not be
mentioned at trial.

¶4 On the first day of trial, prior to the State calling its first witness, it came to the
district court’s attention that one of the jury members had spoken with some of the
State’s witnesses outside of the courtroom. The district court held an in‐chambers
conference with the juror and the parties. The juror stated that he had turned down the
wrong hallway, encountered several of the State’s witnesses whom he mistook for
fellow jurors, and engaged in small talk with them for approximately two minutes
before everyone involved realized the mistake. The juror explained,

I recall the only thing we discussed down there—I got
this—we’re waiting there and had been waiting. One of the
first guys said, “I have been here since 8:00 this morning.”
And I said, “Well, you could be in someplace like Chicago in
a airport, you know, with the blizzard.” So it’s—we were
discussing airport carpeting. We realized the mistake and
that’s all we discussed.

The juror then apologized to the district court for the incident, the district court
accepted the juror’s apology, and the juror concluded, “It ain’t going to happen again,
I’ll guarantee you that.”

¶5 After the juror left chambers, the district court and both counsel agreed that the
incident was “a pretty innoxious encounter.” The State nevertheless suggested that it
would not be “inappropriate” to switch the juror with an available alternate juror, but
added, “I think he feels bad for both sides that he made a mistake.” Tafuna’s counsel
responded,

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Yeah, I 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 is an honest mistake. He
feels so badly about it. He said it wouldn’t happen again. I
think he’s going to be conscious and a good juror.

The district court warned the juror not to discuss the incident with the other jurors and
allowed the juror to remain on the jury. The juror went on to serve as the jury
foreperson.

¶6 During the trial, the State presented testimony from a detective who had
investigated the Halloween party incident. However, the State failed to apprise the
detective about the parties’ stipulation regarding the identification cards found in
Tafuna’s coat, and when the State asked the detective if he had received any evidence
after October 27, 2007, he replied, “A couple of iPods, a cellphone, a leather coat, a
wallet inside the leather coat with several people—several different people type IDs.”
The State immediately changed the subject by asking the detective about the iPods, and
no further reference was made to the identification cards.

¶7 Tafuna moved for a mistrial, arguing that the mention of the identification cards
violated the parties’ stipulation and suggested to the jury that Tafuna had additionally
been involved in criminal identity theft. The district court denied the motion, reasoning
that the reference to the identification cards was fleeting and was not emphasized by
either side, that it was not deliberate on the State’s part, and that the reference would
cause no injustice to Tafuna. The district court gave Tafuna’s counsel the option of
requesting a curative instruction, which counsel declined so as to not “emphasize the
negative.” Nevertheless, later in the trial, the State withdrew Tafuna’s coat and its
contents from evidence and the district court instructed the jury, “The jacket that came
in you’re not to—you’re to disregard any testimony relating to it or—to the jacket or
anything that was found in the jacket. And it’s stricken and it is as if it were never
entered into the record at this point.”

¶8 On the third day of trial, just before the jury was sent to deliberate, Tafuna’s
counsel raised the issue of the potentially tainted juror again, arguing to the district
court that the juror should be replaced with an alternate juror “in abundance of
caution.” The district court denied this request, stating that there had been no objection
after the in‐chambers conference with the juror and that the court remained convinced

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that the juror was untainted by his contact with the State’s witnesses. The jury
convicted Tafuna of aggravated robbery,1 and he now appeals.

ISSUES AND STANDARDS OF REVIEW

¶9 Tafuna first argues that the district court erred by allowing the juror who had
interacted with the State’s witnesses to serve on Tafuna’s jury. Whenever a juror’s
interaction with a witness “goes beyond a mere incidental, unintended, and brief
contact, there is a rebuttable presumption of prejudice, and . . . to counteract this
presumption the prosecution must prove that the unauthorized contact did not
influence the juror.” State v. Allen, 2005 UT 11, ¶ 51, 108 P.3d 730 (internal quotation
marks omitted). However, the invited error doctrine applies in the context of improper
juror contacts, and trial counsel waives the issue by affirmatively choosing not to raise a
timely objection to the potentially tainted juror. See State v. Day, 815 P.2d 1345, 1349–50
(Utah Ct. App. 1991).

¶10 Tafuna also argues that the district court erred when it refused to grant a mistrial
after the State elicited testimony about the identification cards found in Tafuna’s coat.
We review the district court’s denial of a mistrial motion only for an abuse of discretion.
See State v. Duran, 2011 UT App 254, ¶ 12, 262 P.3d 468.

ANALYSIS

I. Contact Between a Juror and State Witnesses

¶11 Tafuna’s first argument on appeal is that the district court erred in allowing a
juror who conversed with State witnesses outside of the courtroom to serve on Tafuna’s
jury. Utah law on contacts between jurors and witnesses has been described as
“rigorous.” See Logan City v. Carlsen, 799 P.2d 224, 227 (Utah Ct. App. 1990) (Orme, J.,
concurring); see also State v. Pike, 712 P.2d 277, 279 (Utah 1985) (“We have long taken a
strict approach in assuring that the constitutional guarantee of a fair trial not be
compromised by improper contacts between jurors and witnesses, attorneys, or court
personnel.”). “[A] rebuttable presumption of prejudice arises from any unauthorized
contact during a trial between witnesses, attorneys or court personnel and jurors which

1. The district court apparently dismissed the weapons charge at the close of trial on
Tafuna’s motion. That charge is not at issue in this appeal.

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goes beyond a mere incidental, unintended, and brief contact.” Pike, 712 P.2d at 280.
“[W]hen the contact is more than incidental, the burden is on the prosecution to prove
that the unauthorized contact did not influence the juror.” Id. This is because
“improper contacts may influence a juror in ways he or she may not even be able to
recognize and . . . a defendant may be left with questions as to the impartiality of the
jury.” See id.

¶12 In light of this rigorous approach to juror contacts, we agree with Tafuna that a
presumption of juror prejudice arose in this case. However innocuous its subject
matter, the two minute conversation between the juror and the witnesses was clearly
“more than a brief, incidental contact where only remarks of civility were exchanged.”
See State v. Erickson, 749 P.2d 620, 621 (Utah 1987). This is sufficient to raise a
presumption of prejudice under Utah case law. See id.; Pike, 712 P.2d at 279–80.

¶13 Tafuna also makes a persuasive argument that the juror’s explanation of the
incident did not, in and of itself, rebut or resolve the presumption of prejudice. See
generally Pike, 712 P.2d at 279–80 (discussing the State’s burden of rebutting the
presumption of prejudice raised by improper juror contact). Here, despite the apparent
harmlessness of the subject matter of the conversation, the juror’s brief conversation
with the State’s witnesses could have influenced the juror “in ways he . . . may not even
be able to recognize.” See id. at 280. And Tafuna correctly points out that the district
court only questioned the juror about the conversation itself and not about the
encounter’s effect on the juror’s ability to remain fair and impartial.2 However, we need
not determine whether the State succeeded in rebutting the presumption in this case
because it is apparent that Tafuna’s counsel waived any objection to the juror’s service
and invited any error that Tafuna now claims the district court made.

¶14 After the juror described the incident, the district court stated its initial
impression that the conversation was “pretty innoxious,” and Tafuna’s counsel
immediately responded, “Yes.” The State agreed, but expressed its lack of objection to
replacing the juror with an available alternate. Had Tafuna requested replacement of
the juror at that time, the district court would have been obligated to either replace the
juror or require the State to rebut the presumption of prejudice. See generally id.
(“[W]hen the contact is more than incidental, the burden is on the prosecution to prove
that the unauthorized contact did not influence the juror.”).

2. Even this might not have been sufficient for the very reason that the juror may not
have “be[en] able to recognize” any biasing effect. See State v. Pike, 712 P.2d 277, 280
(Utah 1985).

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¶15 Instead, however, Tafuna’s counsel stated, “[Y]ou could tell [the juror] takes it
very seriously. It is an honest mistake. He feels so badly about it. He said it wouldn’t
happen again. I think he’s going to be conscious and a good juror.” The statement that
the juror would be “conscious and a good juror” was an affirmative representation to
the district court that Tafuna’s counsel had no objection to the juror’s partiality or his
ability to serve on the jury. As such, the statement constituted a waiver of the issue and
the invitation of any error resulting from the juror’s continuing service.3 See State v.
Day, 815 P.2d 1345, 1349–50 (Utah Ct. App. 1991).

¶16 In light of Tafuna’s counsel’s earlier express approval of the juror’s continued
service, we also see no error in the district court’s subsequent refusal to replace the juror
when Tafuna’s counsel later made such a request immediately prior to jury
deliberations. The only reason offered by counsel for this request was that it should be
done “in [an] abundance of caution.” This request did not obviate counsel’s prior
express waiver of objection to the juror’s service or otherwise place the district court on
notice of a specific impending error. Counsel’s request also raised no circumstances
other than an abundance of caution that might have required removal of the juror at
that late stage of the trial.4

¶17 For these reasons, we determine that Tafuna’s counsel affirmatively waived any
objection to the juror’s service and thereby invited any error arising from the improper

3. Tafuna’s counsel’s statement also establishes a sound tactical reason for failing to
insist on the juror’s removal. Counsel’s assessment that the juror “takes it very
seriously” and “feels so badly about it” recognized the possibility that the juror might
have compensated for the incident by treating the State’s witnesses with greater scrutiny
than he might have otherwise. This reasonable basis for failing to challenge the juror
defeats Tafuna’s cursory alternative argument that the decision constituted ineffective
assistance of counsel by his trial counsel. See generally State v. Clark, 2004 UT 25, ¶ 6, 89
P.3d 162 (“[D]efendant must overcome the strong presumption that [his] trial counsel
rendered adequate assistance by persuading the court that there was no conceivable
tactical basis for counsel’s actions.” (second alteration in original) (internal quotation
marks omitted)).

4. We can envision circumstances that might have required revisitation of the issue,
such as testimony by the State’s witnesses that the scope or duration of their contact
with the juror exceeded that described by the juror. However, no such circumstances
were alleged in this case.

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juror contact. Accordingly, we affirm the district court’s handling of the juror contact
issue.

II. Denial of Tafuna’s Motion for Mistrial

¶18 Next, Tafuna argues that the district court erred in denying his motion for
mistrial. Tafuna moved for a mistrial after a detective testified, in violation of the
parties’ pretrial stipulation of exclusion, that he had received “several different people
type IDs” that had been found in a wallet in Tafuna’s coat. The district court denied
Tafuna’s motion, concluding that the single reference was not an intentional violation of
the stipulation, neither party had emphasized the improper testimony, and Tafuna
would suffer no injustice.

¶19 “We will not reverse a trial court’s denial of a motion for mistrial absent an abuse
of discretion.” State v. Robertson, 932 P.2d 1219, 1230 (Utah 1997). Here, as found by the
district court, the State offered a good faith explanation for the testimony, and neither
side emphasized or repeated the single reference to the identification cards. Further,
although we agree with Tafuna that negative inferences could arise from the
identification card testimony, those inferences are somewhat speculative.

¶20 The identification card testimony is also less clear than Tafuna portrays it on
appeal. The bare statement “several different people type IDs” could indicate that
Tafuna possessed identification cards belonging to other persons besides himself, but it
could also suggest that the wallet contained several different identification cards
belonging to Tafuna—e.g., a driver license, school ID, and work ID. With no further
suggestion by the State that the identification cards were evidence of additional
wrongdoing by Tafuna, we see no reason to believe that the jury would have assumed
anything other than an innocent interpretation of the ambiguous identification card
testimony.

¶21 “Unless a review of the record shows that the [district] court’s decision is plainly
wrong in that the incident so likely influenced the jury that the defendant cannot be said
to have had a fair trial, we will not find that the court’s decision was an abuse of
discretion.” Robertson, 932 P.2d at 1231. In light of the reasons expressed by the district
court and the ambiguity of the detective’s reference, we cannot say that the reference
deprived Tafuna of a fair trial. Accordingly, we affirm the district court’s denial of his
motion for mistrial.

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CONCLUSION

¶22 Tafuna’s trial counsel invited any error in allowing a potentially tainted juror to
serve when counsel affirmatively declined to object after becoming aware of the extent
of contact between the juror and several State witnesses. This decision constituted a
waiver of the issue by defense counsel, and the district court properly rejected trial
counsel’s later attempt to raise the issue again after two days of trial. Further, the
district court acted within its discretion in denying Tafuna’s motion for mistrial where
the single reference to identification cards was inadvertent and fleeting and any
prejudice arising from the ambiguous reference was speculative. For these reasons, we
affirm Tafuna’s conviction.

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William A. Thorne Jr., Judge

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¶23 WE CONCUR:

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James Z. Davis, Judge

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Michele M. Christiansen, Judge

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