State v. Alvarez

1. Alvarez’s last name was misspelled “Alverez” throughout the
proceedings in the trial court. We correct the error here.
2. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2014 UT App 179
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
FRANCISCO ALVAREZ,1
Defendant and Appellant.
Memorandum Decision
No. 20130230-CA
Filed July 31, 2014
Third District Court, Salt Lake Department
The Honorable William W. Barrett
No. 111903578
Joanna E. Landau and Adam Alba, Attorneys
for Appellant
Sean D. Reyes and Daniel W. Boyer, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGE J. FREDERIC VOROS JR. and SENIOR JUDGE RUSSELL
W. BENCH concurred.2
ORME, Judge:
¶1 Defendant Francisco Alvarez was convicted of murder, a
first degree felony; possession of a dangerous weapon by a
restricted person, a second degree felony; and unlawful discharge

State v. Alvarez
3. On appeal, we recite the facts in the light most favorable to the
jury’s verdict. State v. Brown, 948 P.2d 337, 339 (Utah 1997).
20130230-CA 2 2014 UT App 179
of a firearm, a third degree felony. He appeals, arguing that the
trial court abused its discretion by denying his request to ask
potential jurors if they would be embarrassed to return a not-guilty
verdict in a murder case. We affirm.
¶2 On the evening of the murder, hundreds of people had
gathered at a Salt Lake City park for youth league baseball games
and team picture day. Many of the park-goers heard gunshots, and
at least three adults saw Defendant shoot the victim four or five
times in the back. According to witnesses, Defendant then got on3
his bicycle and began to ride away. One baseball coach heard the
gunshots and ran in their direction. After several people pointed
toward Defendant, the coach chased after him. During the pursuit,
the coach saw Defendant throw a gun toward a river that ran
through the park. Eventually, the coach caught up with Defendant,
tackled him off the bicycle, and held him down until police arrived.
¶3 Police found five live rounds of .22-caliber ammunition on
Defendant. A short while later, police discovered a .22-caliber gun
near the spot where the coach had tackled Defendant. Crime scene
analysts later confirmed that the ammunition casings Defendant
was carrying matched the expended casings found where the
shooting took place. Police investigators interviewed some
seventeen witnesses, one of whom was only ten feet away from
Defendant when he started shooting.
¶4 During jury selection at the outset of Defendant’s trial, his
counsel wanted to ask the potential jurors whether “any of them
would feel any embarrassment for returning a not-guilty verdict
knowing a defendant is charged with murder.” The trial court did
not allow the question. Defendant requested permission to ask the
question two more times and was denied each time. After the jury
was selected, Defendant objected to the trial court’s decision not to

State v. Alvarez
20130230-CA 3 2014 UT App 179
ask the question. The trial court never did explain the basis for its
disallowance, but it asked many other questions, hereafter
summarized, designed to ascertain the potential traits and biases
of the jurors.
¶5 A “trial court’s management of jury voir dire [is] reviewed
under an abuse of discretion standard.” Alcazar v. University of Utah
Hosps. & Clinics, 2008 UT App 222, ¶ 9, 188 P.3d 490. “Generally,
the trial court is afforded broad discretion in conducting voir dire,
but that discretion must be exercised in favor of allowing discovery
of biases or prejudice in prospective jurors.” Depew v. Sullivan, 2003
UT App 152, ¶ 10, 71 P.3d 601 (citation and internal quotation
marks omitted). The key inquiry is “whether, considering the
totality of the questioning, counsel was afforded an adequate
opportunity to gain the information necessary to evaluate jurors.”
Taylor v. State, 2007 UT 12, ¶ 70, 156 P.3d 739 (citation and internal
quotation marks omitted). If the trial court’s decision to exclude the
question about juror embarrassment substantially impaired
Defendant’s right to the informed exercise of peremptory
challenges, it is reversible error. See Hornsby v. Corporation of the
Presiding Bishop of the Church of Jesus Christ of Latter-day Saints, 758
P.2d 929, 933 (Utah Ct. App. 1988).
¶6 We conclude that Defendant had ample information upon
which to effectively base his peremptory challenges and that the
trial court’s refusal to ask the question about potential
embarrassment did not constitute reversible error. While
Defendant’s proposed question may have incrementally aided
Defendant in the wise use of his peremptory challenges, the
question was just a means for gauging juror attitudes and
predilections. The potential jurors were asked a variety of other
questions that yielded Defendant a wealth of information that was
useful for this purpose. For example, the prospective jurors were
asked about their employment and family circumstances and their
primary sources of news. They were also asked whether they
would give more weight to the testimony of a police officer;
whether they had ever used a semiautomatic handgun; whether

State v. Alvarez
20130230-CA 4 2014 UT App 179
they had negative feelings toward the legal system; whether they
thought poorly of defense attorneys; whether they had used force
to defend themselves; whether they had negative feelings toward
those who consumed alcohol; whether they had moral or religious
objections that would prevent them from judging another person;
and whether they had close relatives or friends who had been
victims of a crime. All things considered, the trial court’s
disinclination to ask one additional question during jury selection
simply did not impair Defendant’s ability to intelligently exercise
his peremptory challenges, nor did it otherwise substantially affect
his rights.
¶7 Affirmed.