State v. Riddle

2019 UT App 150
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
WAYLON K EITH R IDDLE ,
Appellant.
Opinion
No. 20180599-CA
Filed September 12, 2019
Sixth District Court, Kanab Department
The Honorable Wallace A. Lee
No. 161600142
Dale W. Sessions, Attorney for Appellant
Sean D. Reyes and Jonathan S. Bauer, Attorneys
for Appellee
JUDGE M ICHELE M. C HRISTIANSEN F ORSTER authored this Opinion,
in which J UDGES D AVID N. M ORTENSEN and R YAN M. HARRIS
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 	Waylon Keith Riddle challenges the trial court’s denial of
his motion to set aside and vacate his convictions on four counts
of distribution of a controlled substance. We affirm.
BACKGROUND
¶2 	Three days after Riddle’s jury trial was completed, his
trial counsel had lunch with the Kane County Attorney, Robert
Van Dyke. Van Dyke had not participated in Riddle’s trial,
which was tried by a deputy county attorney. While they were
eating, 	a 	man 	approached 	Van 	Dyke 	to 	talk 	about 	some
paperwork. Riddle’s counsel recognized the man as one of the

State v. Riddle
20180599-CA 	2 	2019 UT App 150
jurors in Riddle’s trial. Van Dyke informed counsel that the juror
was his personal accountant and that the paperwork referred to
was Van Dyke’s tax return. Although the jurors had been asked
during voir dire about their acquaintance with the lawyers,
parties, and witnesses in the case, they were never asked about
their 	relationship 	to 	other 	individuals 	in 	the 	Kane 	County
Attorney’s office.
¶3 	Based on the business relationship between Van Dyke
and 	the 	juror, 	Riddle 	moved 	the 	court 	to 	set 	aside 	the
jury’s 	verdict, 	vacate 	his 	convictions, 	and 	order 	a 	new
trial. Riddle acknowledged that there was no evidence that the
juror was actually biased based on his professional relationship
with 	Van 	Dyke 	but 	nevertheless 	asserted 	that 	the 	juror’s
relationship with Van Dyke violated his right to a fair and
impartial jury. The 	trial court denied 	Riddle’s motion, 	and
Riddle now appeals.
ISSUE AND STANDARD OF REVIEW
¶4 	Riddle asserts that the court erred in denying his motion
to set aside the jury’s verdict and grant him a new trial. So long
as the trial court has correctly applied the law, we review its
“ruling on a motion for a new trial under an abuse of discretion
standard.” State v. De La Rosa, 2019 UT App 110, ¶ 4, 445 P.3d
955 (quotation simplified).
ANALYSIS
¶5 	Riddle urges us to hold that the very existence of an
undisclosed professional relationship between Van Dyke and the
juror created an appearance of impropriety that required a new
trial. While he asserts that this is a matter of first impression, our
case law is clear that a jury verdict need not be reversed on
grounds of juror partiality when there is no evidence of bias on
the part of the juror.

State v. Riddle
20180599-CA 	3 	2019 UT App 150
¶6 	Rule 24 of the Utah Rules of Criminal Procedure permits
trial courts to “grant a new trial in the interest of justice if there
is any error or impropriety which had a substantial adverse
effect upon the rights of a party.” Utah R. Crim. P. 24(a). “[T]he
Fourteenth 	Amendment 	Due 	Process 	Clause 	assures 	each
defendant the fundamental right to a fair trial.” State v. Arguelles,
2003 UT 1, ¶ 97, 63 P.3d 731. “One touchstone of a fair trial is an
impartial trier of fact—a jury capable and willing to decide the
case solely on the evidence before it.” McDonough Power Equip.,
Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (quotation simplified).
Thus, one “error or impropriety,” see Utah R. Crim. P. 24(a), that
may justify granting a new trial to a defendant is the existence of
juror bias. Nevertheless, “due process does not require a new
trial 	every 	time 	a 	juror 	has 	been 	placed 	in 	a 	potentially
compromising situation.” Smith v. Phillips, 455 U.S. 209, 217
(1982). Likewise, a new trial under rule 24 is appropriate only
where the alleged “error or impropriety . . . had a substantial
adverse effect upon the rights of a party.” Utah R. Crim. P. 24(a).
Thus, to obtain a new trial on grounds of juror partiality, the
defendant must “prove actual bias” on the part of the juror. See
Smith, 455 U.S. at 215.
¶7 	Riddle concedes that there is no evidence of actual bias in
this case but nevertheless asserts that we should employ the
doctrine of implied bias to determine that “due to the financial
and or emotional relationship between the juror and [Van Dyke]
. . . there may indeed have been implied bias.” In theory, implied
bias 	may 	be 	found 	“where 	the 	relationship 	between 	a
prospective juror and some aspect of the litigation is such that it
is highly unlikely that the average person could remain impartial
in his deliberations under the circumstances.”1 Johnson v. Luoma,
1. This is essentially the same test used to examine for-cause
challenges to jurors based on “[t]he existence of any social, legal,
business, 	fiduciary 	or 	other 	relationship,” 	which 	examines
whether 	the 	“relationship 	when 	viewed 	objectively, 	would
suggest to reasonable minds that the prospective juror would be
(continued…)

State v. Riddle
20180599-CA 	4 	2019 UT App 150
425 F.3d 318, 326 (6th Cir. 2005) (quotation simplified). However,
the continued viability of this doctrine has been in question since
the 	United 	States 	Supreme 	Court 	adopted 	the 	actual 	bias
requirement in Smith v. Phillips, 455 U.S. 209 (1982), and the
Supreme Court has never explicitly endorsed the concept of
implied bias. See English v. Berghuis, 900 F.3d 804, 816 (6th Cir.
2018).
¶8 	But even assuming, without deciding, that the doctrine
remains viable, Riddle has presented no evidence from which
the 	trial 	court 	could 	have 	determined 	that 	the 	relationship
between the juror and Van Dyke implied that the juror was
biased. Implied bias applies only to “extreme situations” such as
where it is revealed “that the juror is an actual employee of the
prosecuting agency, that the juror is a close relative of one of the
participants in the trial or the criminal transaction, or that the
juror 	was 	a 	witness 	or 	somehow 	involved 	in 	the 	criminal
transaction.” Smith, 455 U.S. at 222 (O’Connor, J., concurring); see
also Johnson, 425 F.3d at 326. This is not such a situation.
¶9 	The trial court stated that had it known that the juror was
Van Dyke’s accountant, it “would not have found that to be a
valid basis for a challenge for cause,” especially given the “small
community” in which the trial took place. The court found that
the “relationship would not suggest to reasonable minds that
that juror would be, simply by virtue of that relationship, unable
or 	unwilling 	to 	return 	a 	verdict 	which 	would 	be 	free 	of
favoritism.” See Utah R. Crim. P. 18(e)(4). We see no error in the
trial court’s findings.
¶10 	Riddle presented the court with no information regarding
the relationship between the juror and Van Dyke apart from the
fact that the juror was Van Dyke’s accountant. Nothing in the
(…continued)
unable or unwilling to return a verdict which would be free of
favoritism.” Utah R. Crim. P. 18(e)(4).

State v. Riddle
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nature 	of 	this 	professional 	relationship, 	by 	itself, 	calls 	into
question the juror’s ability to remain indifferent and impartial.
Compare United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977)
(holding that it could be inferred that employees who worked at
a different branch of the bank the defendant was accused of
robbing would be biased due to their “potential for substantial
emotional involvement”), and State v. Brooks, 563 P.2d 799, 800–
02 (Utah 1977) (determining that a juror who was a “neighbor
and personal friend of the prosecution’s witness” and another
juror who was “good friends” with the arresting officer and a
coworker 	of 	his 	wife 	could 	not 	be 	“deemed 	indifferent 	or
impartial” and that the trial court had committed prejudicial
error in declining to dismiss them for cause), with United States v.
Bradshaw, 787 F.2d 1385, 1390–91 (10th Cir. 1986) (holding that
the fact “that a juror had prior business dealings with key
government 	witnesses,” 	without 	more, 	was 	insufficient 	to
establish juror impartiality), and State v. Evans, 2001 UT 22, ¶ 28,
20 P.3d 888 (holding that “the existence of a familial relationship
between a juror and a member of the District Attorney’s office, in
and of itself, is not necessarily the basis for a challenge for cause”
(quotation 	simplified)). 	Moreover, 	Van 	Dyke 	did 	not 	even
participate in the case. Riddle himself asserts only that the
relationship “may” have resulted in implied bias. But a mere
possibility of bias is insufficient to demonstrate implied bias, let
alone actual bias.
¶11 	It is axiomatic that, with rare exceptions, “all errors are
reviewed for harmlessness.” State v. Collins, 2014 UT 61, ¶ 28, 342
P.3d 789; see also Utah R. Crim. P. 24(a) (stating that a new trial
may be granted only “if there is any error or impropriety which
had a substantial adverse effect upon the rights of a party”); id.
R. 30(a) (“Any error, defect, irregularity or variance which does
not affect the substantial rights of a party shall be disregarded.”).
“To conclude that an error was prejudicial, we must find not a
mere 	possibility, 	but 	a 	reasonable 	likelihood 	that 	the 	error
affected the result.” State v. Maestas, 2012 UT 46, ¶ 308, 299 P.3d
892 	(quotation 	simplified). 	By 	asserting 	that 	the 	business
relationship 	between 	the 	juror 	and 	Van 	Dyke 	was 	alone

State v. Riddle
20180599-CA 	6 	2019 UT App 150
sufficient to require the court to find that Riddle did not have a
fair trial, Riddle is essentially asking us to presume prejudice.2
This we cannot do under the circumstances of this case. Because
Riddle made no showing of bias on the part of the juror, the trial
court did not err in concluding that empaneling the juror did not
have 	“a 	substantial 	adverse 	effect” 	on 	Riddle’s 	rights 	and
denying Riddle’s motion to set aside the jury’s verdict.3 See Utah
R. Crim. P. 24(a).
2. Riddle does assert that he was denied the opportunity to
employ a peremptory challenge. But to the extent that this
argument can be construed as an allegation of prejudice, it does
not provide a basis for reversal in the absence of juror bias. See
State 	v. 	Evans, 	2001 UT 	22, 	¶ 	29, 	20 P.3d 	888 	(rejecting 	a
defendant’s assertion that he was prejudiced by his “inability to
use a peremptory challenge” because the “defendant had not
asserted that the jury that sat was partial or biased”); cf. State v.
Sessions, 	2014 	UT 	44, 	¶ 	52, 	342 	P.3d 	738 	(holding 	that 	to
satisfactorily challenge the loss of peremptory challenges, a
defendant must establish “that an actually biased juror sat on the
panel that convicted him”).
3. In addition to analyzing Riddle’s motion pursuant to rule 24,
the trial court employed the two-part test concerning juror bias
annunciated in McDonough Power Equipment, Inc. v. Greenwood,
464 U.S. 548 (1984). In McDonough, a juror failed to respond to a
question regarding whether he or anyone in his family had ever
“sustained any severe injury . . . that resulted in any disability or
prolonged pain and suffering.” Id. at 550 (quotation simplified).
The Court held “that to obtain a new trial in such a situation, a
party 	must 	first 	demonstrate 	that 	a 	juror 	failed 	to 	answer
honestly a material question on voir dire, and then further show
that a correct response would have provided a valid basis for a
challenge for cause.” Id. at 556. Riddle asserts that the trial
court’s reliance on McDonough was misplaced because there was
no allegation in this case that a juror answered a question
(continued…)

State v. Riddle
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CONCLUSION
¶12 	Because Riddle presented no evidence to suggest that the
juror’s relationship with Van Dyke resulted in either implied or
actual bias, he cannot establish that he was denied his right to a
fair trial due to jury partiality. We therefore affirm the trial
court’s denial of his motion to set aside the jury verdict.
(…continued)
untruthfully. While the McDonough test is not directly on point
here, it is not entirely inapplicable. The second prong of the
McDonough test examines whether “a correct response would
have provided a valid basis for a challenge for cause.” Id. As
discussed above, this is the same test used to examine implied
juror bias. See supra ¶ 7 & note 1. The trial court determined that
it would not have sustained a for-cause challenge in this case
even if it had known of the relationship between Van Dyke and
the 	juror 	because 	the 	“relationship 	would 	not 	suggest 	to
reasonable minds that that juror would be, simply by virtue of
that relationship, unable or unwilling to return a verdict which
would be free of favoritism.” This was merely a restatement of
the 	court’s 	rule 	24 	determination 	that 	Riddle 	did 	not
demonstrate an “impropriety which had a substantial adverse
impact upon” his rights because there was “no evidence that
th[e] juror was biased against” Riddle. Thus, even accepting
Riddle’s assertion that the McDonough test was not applicable in
this case, any error by the court in employing McDonough was
harmless because the outcome is the same under either a rule 24
or a McDonough analysis.