State v. Thomas

777 P.2d 445, 111 Utah Adv. Rep. 24, 1989 Utah LEXIS 68, 1989 WL 73124
CourtUtah Supreme Court
DecidedJune 28, 1989
Docket870217
StatusPublished
Cited by41 cases

This text of 777 P.2d 445 (State v. Thomas) 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. Thomas, 777 P.2d 445, 111 Utah Adv. Rep. 24, 1989 Utah LEXIS 68, 1989 WL 73124 (Utah 1989).

Opinions

[447]*447HOWE, Associate Chief Justice:

Defendant was tried and convicted of rape, a first degree felony, in violation of Utah Code Ann. § 76-5-402 (1978, Supp. 1988). During the trial, a police officer was permitted to testify to statements made to her by the victim during an interview held between one and two hours after the incident. Defendant objected to the admission of this testimony and later moved for a mistrial. Defendant also objected to the prosecution’s reference to him as “a black man.” Defendant’s objections were overruled on both counts.

After deliberating for three hours, the jury sent a message that it wanted to talk to the court. The jury was brought into the courtroom, where the foreman stated that they had reached an impasse at six to two, without indicating whether this was for acquittal or conviction. The trial judge, in the presence of defendant and both counsel, gave oral supplemental instructions to the effect that three hours was “not a very long time” to consider a case of this nature and that the jury should “reconvene and see if you can’t solve your problems and reach a verdict.”

Defendant sought to introduce post-trial evidence that two jurors had failed to disclose during voir dire that either they or a close relative had been victims of sex-related crimes. He alleged that the other jurors had used this nondisclosure as leverage to change the two jurors’ votes from acquittal to conviction. The trial judge refused to hear or admit the evidence on the ground that it would be an intrusion on the deliberative process of the jury, in violation of rule 606(b) of the Utah Rules of Evidence. He did not grant a postconviction evidentia-ry hearing.

Defendant assigns error to the trial court on four grounds: (1) that the jury was improperly influenced by the prosecutor’s reference to him as “a black man”; (2) that it was error to give the supplemental oral instruction to the jury; (3) that the trial court erred in admitting the police officer’s testimony as to the victim’s statements to her; and (4) that the failure of two jurors to correctly respond to a question during voir dire denied him a fair trial by an impartial jury.

I.

The remark of the prosecutor to which defendant objected was made in closing argument. The prosecutor had summarized the evidence: the victim was recently married, was waiting for her wedding reception, had a vaginal infection, and had never met defendant. The prosecutor then reviewed the medical evidence and defendant’s testimony that the victim drove into the rear of his car causing damages estimated by him at fifty dollars and that she consented to sexual intercourse in exchange for waiver of liability for the damages. Following this, the prosecutor remarked:

Ask yourselves, does a woman in Mrs. [C.’s] condition voluntarily say to a black man she’s never met the day before her wedding reception, “You bet. To save myself fifty dollars, I'll go down to your trailer, that I have never seen, and I have never seen you, and I don’t know where I am going and don’t know what I’ll find there.”

The reference to defendant’s race was improper, but the question is whether it deprived defendant of a fair trial. We believe it did not.

In State v. Tillman, 750 P.2d 546, 555 (Utah 1987), we held that a prosecutor’s actions and remarks constitute misconduct that merits reversal if (1) the actions or remarks call to the attention of the jurors matters they would not be justified in considering in determining their verdict and (2) under the circumstances of the particular case, the error is substantial and prejudicial such that there is a reasonable likelihood that in its absence there would have been a more favorable result for the defendant. See State v. Gardner, 101 Utah Adv.Rep. 3, 12, (January 31, 1989), to the same effect. In determining whether the error here was prejudicial, we note that the court had screened the jury during voir dire for possible racial prejudice. The fact that defendant was black was obvious to the jury, [448]*448and a single reference to defendant’s color was unlikely to influence them. Second, the prosecutor’s reference to defendant’s color was made within an account of numerous circumstances which purported to make the consent of the victim less likely. We express no opinion on the soundness of the proposition that casual sexual encounters between people of different races are less likely than those between people of the same race. The prosecutor made his remark in an effort to imply such a proposition. There is no indication that the remark was made with derogatory intent or to suggest that because defendant was black, he was more likely to have committed the alleged crime. Third, the prosecutor’s remark was an isolated incident and not part of “continued efforts” to bias the jury that were “too flagrant to be corrected.” State v. Troy, 688 P.2d 483, 487 (Utah 1984). These three circumstances lead us to conclude that the remark did not prejudice the jury.

II.

Defendant next assails the court’s supplemental oral instruction to the jury, asserting that it violated his right to a fair trial. He argues that the judge should not have brought the jury back into the courtroom for further instructions, but instead should have sent into the jury room a written instruction to them to continue their deliberation. He also points out that the judge did not qualify his supplemental instruction by informing the jurors to make a decision based on their independent judgment and according to their own consciences. Thus, he argues, the supplemental instruction was coercive. We find no error. After giving the oral instruction, the court invited both counsel to add anything or to say anything. Neither counsel responded. Before the jury was excused to again begin its deliberation, the court informed the jurors that it would conference with both counsel and “if there are any additional comments or instructions that they wish me to submit to you, I'll either bring you back or we will send them in in writing.” A conference was then held with counsel where defendant’s counsel expressed his disapproval of the jury being brought back into the courtroom for further instruction. He stated that preferably a written note should have been sent to the jury telling it to continue deliberation. The judge agreed that he could have followed the latter procedure but expressed that he did not think any prejudice had resulted to defendant. He then again invited counsel to suggest anything further that he could give the jury by way of a written instruction or note. Defense counsel did not respond.

We do not agree that the supplemental instruction was coercive in any regard. It merely stated that they had not deliberated “a very long time,” that the case warranted some additional consideration by them, and that they should reconvene and endeavor to reach a verdict. The instruction was not directed specifically toward the minority jurors, nor was there any suggestion that the jurors should surrender their individual views of conscience. Criticism which has been leveled at giving an Allen charge simply is not applicable here. See Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 157, 41 L.Ed.

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Bluebook (online)
777 P.2d 445, 111 Utah Adv. Rep. 24, 1989 Utah LEXIS 68, 1989 WL 73124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thomas-utah-1989.