State v. Lee

2006 UT 5, 128 P.3d 1179, 543 Utah Adv. Rep. 26, 2006 Utah LEXIS 5, 2006 WL 73751
CourtUtah Supreme Court
DecidedJanuary 13, 2006
Docket20040560
StatusPublished
Cited by88 cases

This text of 2006 UT 5 (State v. Lee) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lee, 2006 UT 5, 128 P.3d 1179, 543 Utah Adv. Rep. 26, 2006 Utah LEXIS 5, 2006 WL 73751 (Utah 2006).

Opinion

PARRISH, Justice:

1 Defendant James Earl Lee appeals his convictions for one count of aggravated kid-naping and two counts of aggravated assault. He argues that the trial court erred in failing to remove two potential jurors for cause dur *1181 ing voir dire and in failing to merge his aggravated kidnaping conviction with one of his aggravated assault convictions. He also argues that his attorney rendered ineffective assistance by failing to object to the composition of the jury panel and by failing to seek merger of the convictions. We disagree and affirm.

BACKGROUND

12 When reviewing a challenge to a criminal conviction, "[wle recite the facts from the record ... in the light most favorable to the jury's verdict." State v. Geukgeuzian, 2004 UT 16, ¶ 2, 86 P.3d 742 (alteration in original) (internal quotation marks omitted).

T3 In the early morning hours of July 5, 2003, eighteen-year-olds Jennifer Hardinger and Judy Hullinger were walking along Highway 40 in Vernal en route to a friend's house. As they walked, they encountered Lee, who approached them, complimented them on their respective appearances, and invited them to "party" with him. When the girls declined his invitation, Lee offered to purchase alcohol for them. The girls again declined, and Hardinger walked away.

{4 Hullinger was about to do the same when Lee grabbed her arm, complimented her on her body, and fondled her breasts. He then put his hand down the front of Hullinger's pants. In response, Hullinger kicked Lee, turned, and ran to Hardinger. The two girls initially ran. Then, thinking that their encounter with Lee was over, slowed their pace to a walk. Lee approached Hullinger unnoticed from behind, grabbed her hair, and slammed her to the pavement. He proceeded to drag her by the hair across Highway 40 to an alley separating two buildings, where he kicked her repeatedly in the head, rolled her over, pulled down her pants, and got on top of her.

15 Hardinger intervened, pulling Lee off Hullinger and then attempting to drag Hul-linger to the highway. In response, Lee grabbed Hardinger and repeatedly demanded that she pull down her pants. Hardinger told Lee that she would, presumably as a ruse to trick him into relenting and to buy some time. Hardinger then attempted to flee, but Lee caught her, slammed her to the ground, and kicked her several times in the face. Lee then desisted, stating, "I don't want to rape you girls anyway. You guys tell the police, T'll kill you." Finally, he left.

16 Because Lee was wearing steel-toed boots on the night in question, both girls sustained severe injuries as a result of Lee's beatings. Lee was subsequently arrested and charged with two counts of aggravated assault and two counts of aggravated kidnap-ing. After a preliminary hearing and bind-over, the case went to trial.

11 7 During voir dire, the trial judge identified the participants and witnesses that would appear during the course of the trial and asked whether any of the potential jurors had a close personal relationship with any of them. Juror 17 disclosed that she had previously been prosecuted by the State prosecutor. She also stated that she knew both Hardinger and one of the police officers who had investigated the assault and who was scheduled to testify. When asked whether she would favor the testimony of those individuals, she responded that she would be fair. Later, in chambers, it was disclosed that Lee's attorney represented Juror 17s grandmother in business dealings. The judge asked Juror 17 whether her prior dealings with the State prosecutor and Lee's attorney would prevent her from being fair, and she responded that they would not. Juror 17 also stated that she had not talked to Hardinger "in about four or five weeks," that she "went to school with [Hardinger] sometimes," that Hardinger occasionally came "over to the house that [Juror 17] part[ied] at sometimes," but that her relationship with Hardinger would not compromise her impartiality. Both the State prosecutor and Lee's attorney passed Juror 17 for cause, but Lee's attorney eventually struck her from the jury through use of a peremptory challenge.

T8 Also during voir dire, the trial judge asked if any potential jurors, their close friends, or members of their families had been involved with law enforcement. Juror 18 stated that she had "a niece by marriage that is married to a detective." When the trial judge asked Juror 18 whether that rela *1182 tionship would "cause [her] to be giving more weight to the police side of the table," she responded that it would not. Later, when asked whether she had a close relationship with any prospective witnesses, Juror 18 clarified her previous answer, stating that the detective to whom her niece was married had participated in investigating the assault and was scheduled to testify. The trial judge asked her how often she had contact with the detective, and Juror 18 responded, "Not very often." The trial judge then asked Juror 18 whether she would give the detective's testimony more weight, to which she responded that she would be fair.

T9 At the conclusion of voir dire, the trial judge asked both parties whether the remaining potential jurors, which included Juror 18, constituted "the jury as selected." Lee's attorney responded, "It is, Your Hon- or."

1 10 This jury convicted Lee of two counts of aggravated assault and one count of aggravated 1 The trial court did not merge Lee's aggravated kidnaping conviction into his corresponding aggravated assault conviction, and Lee's attorney made no objection.

T11 Lee appealed his convictions to the Utah Court of Appeals. The court of appeals subsequently transferred the appeal to this court because it involved a first degree felony conviction. See Utah Code Ann. § 78-2-2(8)(1) (2002). Pursuant to our pourover authority, we transferred the case back to the court of appeals. See id. § 78-2-2(4). We later rescinded that transfer so that we could hear Lee's appeal concurrently with State v. King, 2006 UT 3, 131 P.3d 202, and State v. Winfield, 2006 UT 4, 128 P.3d 1171, which, like Lee's appeal, raise the question of the applicable standard of review where challenges to jury composition are raised for the first time on appeal. We have jurisdiction pursuant to Utah Code section

ANALYSIS

112 On appeal, Lee asserts two principal claims, each of which involves a related ineffective assistance of counsel claim. First, Lee argues that the trial court erred in failing to remove Jurors 17 and 18 for cause from the jury panel. Alternatively, he argues that his attorney rendered ineffective assistance by failing to ask that the trial court strike those jurors for cause. Second, Lee argues that the trial court erred in failing to merge his aggravated kidnaping conviction into his corresponding aggravated assault conviction. Alternatively, he argues that his attorney rendered ineffective assistance in failing to request such a merger. We address each argument in turn.

I. THE TRIAL COURTS FAILURE TO REMOVE JURORS 17 AND 18 FOR CAUSE

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Bluebook (online)
2006 UT 5, 128 P.3d 1179, 543 Utah Adv. Rep. 26, 2006 Utah LEXIS 5, 2006 WL 73751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lee-utah-2006.