State v. Woolley

810 P.2d 440, 158 Utah Adv. Rep. 35, 1991 Utah App. LEXIS 49, 1991 WL 53437

Opinions

AMENDED OPINION

Footnotes

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Before BENCH, BILLINGS and GREENWOOD, JJ.

BILLINGS, Judge:

Defendant Paul Edwin Woolley appeals from his conviction of two counts of forgery, a third-degree felony, in violation of Utah Code Ann. § 76-6-501 (1989). Defendant claims the trial court committed reversible error by failing either to remove a juror for cause or to ask questions to probe his potential bias when the juror admitted he had been a victim of forgery. We reverse and remand for a new trial.

FACTS

During voir dire of potential jurors in defendant’s trial, the court, at the request of defendant’s counsel, asked: “Are there those among you ..., members of the panel, who have yourselves been the victim of a forgery or a crime involving deception or fraud?” Three potential jurors, Mark Hoyt, Chris VanLeeuwen, and James Tyler, responded affirmatively. Hoyt explained that his wallet was taken when he was in California and that his credit card was used. VanLeeuwen related that when he was in Brazil, a thief stole his wallet and wrote about $5,000 worth of checks on his account. Similarly, Tyler explained that some of his checks were stolen in 1961 when he lived in Los Angeles and that someone had forged his signature on some of those checks.

Following these responses, the trial court asked Hoyt, VanLeeuwen, and Tyler, as a group, one general follow-up question:

Those three of you who have responded, recognizing that this is a different time and place and circumstance, would that experience, having been the victim of that type of a crime, affect your ability to be fair and impartial in this case, that is, would you be unable to set aside that experience and hear the evidence in this case and rule on the evidence based upon what you hear and the credibility of the witnesses? If you would not be able to do so, I want you to raise your hand.

None of those questioned raised his hand.

At the conclusion of voir dire, the trial court requested counsel to pass the jury for cause. The defense refused and requested a sidebar conference. During the conference, defense counsel asked the court to remove Hoyt, Tyler, and VanLeeu-wen because of their admissions to having been victims of similar crimes. The trial judge initially struck all three of the challenged jurors for cause.¹ Subsequently, however, the court reinstated juror Van-Leeuwen, explaining its action by stating that VanLeeuwen need not be removed because the forgery occurred in a foreign country. Defense counsel objected to the reinstatement of VanLeeuwen and subsequently removed VanLeeuwen by peremptory challenge.

Defendant was convicted on both counts of forgery and was sentenced to two concurrent terms of zero to five years. Defendant argues on appeal that the court committed reversible error in reinstating Van-Leeuwen.

REMOVAL OF A JUROR FOR CAUSE

A motion to dismiss a prospective juror for cause is within the sound discretion of the trial court. When reviewing such a ruling, we reverse only if the trial court has abused its discretion. State v. Gotschall, 782 P.2d 459, 462 (Utah 1989) (citing State v. Larson, 775 P.2d 415, 419 (Utah 1989); State v. Verde, 770 P.2d 116, 120 (Utah 1989)).² The Utah Supreme Court has noted, however, that the exercise of the trial court’s discretion in selecting a fair and impartial jury must be viewed “in light of the fact that it is a simple matter to obviate any problem of bias simply by excusing the prospective juror and selecting another.” Jenkins v. Parrish, 627 P.2d 533, 536 (Utah 1981).³

The Utah Supreme Court has consistently emphasized that “it is [the trial judge’s] duty to see that the constitutional right of an accused to an impartial jury is safeguarded,” State v. Dixon, 560 P.2d 318, 319-20 (Utah 1977), and has reversed criminal convictions based solely on the appearance that such right may have been jeopardized.⁴ Accordingly, trial courts must adequately probe a juror’s potential bias when that juror’s responses or other facts suggest a bias. The court’s discretion is properly exercised when deciding whether to dismiss a juror for cause only after this investigation takes place.

A party is entitled to use peremptory challenges to remove jurors who are not properly removed for cause. State v. Brooks, 631 P.2d 878, 883 (Utah 1981) (“Brooks II"); State v. Brooks, 563 P.2d 799, 802-03 (Utah 1977) (“Brooks I”); Crawford v. Manning, 542 P.2d 1091, 1093 (Utah 1975). It is prejudicial error to compel a party to exercise a peremptory challenge to remove a prospective juror who should have been removed for cause. Gotschall, 782 P.2d at 461; State v. Julian, 771 P.2d 1061, 1064 (Utah 1989).⁵

A. Juror Impartiality

Article I, section 12 of the Utah Constitution and the sixth amendment to the United States Constitution guarantee a criminal defendant the right to a trial by an impartial jury. See State v. Bishop, 753 P.2d 439, 448 (Utah 1988). Utah Rule of Criminal Procedure 18(e) implements these constitutional mandates and offers guidance as to when a juror should be removed for cause. This rule provides in relevant part:

The challenge for cause is an objection to a particular juror and may be taken on one or more of the following grounds:

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(14) That a state of mind exists on the part of the juror with reference to the cause, or to either party, which will prevent him from acting impartially and without prejudice to the substantial rights of the party challenging....

Utah R.Crim.P. 18(e)(14).

Juror impartiality is a “mental attitude of appropriate indifference.” Bishop, 753 P.2d at 451 (citing Brooks I, 563 P.2d at 801). “Chief Justice Marshall, presiding over the trial of Aaron Burr in 1807, defined an impartial jury as one composed of persons who ‘will fairly hear the testimony which may be offered to them, and bring in their verdict, according to that testimony, and according to the law arising on it.’” State v. Bailey, 605 P.2d 765, 767 (Utah 1980) (citations omitted).

In assessing whether a juror should be removed for cause, the supreme court has given the following guidance:

Light impressions which may fairly be supposed to yield to the testimony that may be offered; which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but ... those strong and deep impressions which will close the mind against the testimony that may be offered in opposition to them; which will combat that testimony and resist its force, do constitute a sufficient objection to him.

Julian, 771 P.2d at 1064-65 (citations omitted).

Once a juror’s impartiality has been put in doubt, a trial judge must investigate by further questions to determine if the juror has merely “light impressions” or impressions which are “strong and deep” and which will affect the juror’s impartiality. “When comments are made which facially question a prospective juror’s impartiality or prejudice, an abuse of discretion may occur unless the challenged juror is removed by the court or unless the court or counsel investigates and finds the inference rebutted.” State v. Cobb, 774 P.2d 1123, 1126 (Utah 1989); see also Bishop, 753 P.2d at 451.

The dissent concludes that the mere fact that a juror was the victim of the same crime for which the defendant is on trial does not raise an “inference of bias” but merely a “question of bias.” The dissent claims, therefore, that under these circumstances, a trial judge is not required to probe the juror to determine whether the potential bias is merely a “light impression,” thus allowing the juror to remain, or an “impression which is deep and strong,” in which case the court should remove the juror for cause.

We find no distinction in Utah case law between a “question of bias” and an “inference of bias.” Furthermore, we find no good policy reason not to require probing to clarify any possible prejudice when fundamental rights are at stake. Such narrow line drawing would only cause confusion for trial judges. First, judges would be required to determine if there was a potential for bias. Next, they would have to determine whether it fell into the class of a “question of bias” where minimal investigation was required or an “inference of bias” where more thorough questioning was required. A broader and simpler statement of the rule actually gives trial judges clearer direction and more latitude in ferreting out potential bias.

We agree with the dissent that a trial judge in the first instance conducts voir dire to probe for potential bias. That is what the trial judge did in the instant case when he asked the potential jurors if any of them had been a victim of forgery. This probe did reveal a “question” or an “inference” of bias on the part of three potential jurors. Thus, we believe, contrary to the dissent, that “because the probing revealed a potential for bias,” the trial judge was required to address the potential bias “through rehabilitative inquiry” until this “inference” or “question” was rebutted. This is precisely what the trial judge attempted to do.

Additionally, we do not understand what the dissent means by a “per se” inference of bias and reject any such nomenclature. If “per se” as used by the dissent means that a potential juror’s prior victimization of the same crime for which the defendant is on trial raises an inference such that the trial judge must probe the juror to insure that he or she can decide the case impartially despite the past victimization, we do so hold. This rule, however, is not appropriately categorized as a “per se” rule as there is no result which automatically follows. If, however, “per se” as used by the dissent means that a potential juror’s prior victimization creates an inference such that the juror’s removal is mandated, we clearly reject such a position. We simply find, as did the trial judge, that the responses of the potential jurors that they had been victims of the same crime for which the defendant was being tried were “comments” which raised a facial question as to each prospective juror’s impartiality, thus requiring further probing by the trial judge.

The dissent relies heavily on the recent Utah Court of Appeals decision in State v. Jonas, 793 P.2d 902 (Utah Ct.App.1990) for the proposition that a prospective juror’s prior victimization of the same crime with which the defendant is charged does not raise an inference of bias. We agree that there is some troublesome language in Jonas but find its result consistent with our conclusion in the instant case. In Jonas, a prospective juror disclosed during voir dire that she had been the victim of theft, the offense with which the defendant had been charged. The Jonas trial judge correctly asked the juror no less than ten individual follow-up questions probing her potential bias and her answers dispelled any inference of bias. Against this backdrop, the court of appeals found no reversible error when the trial court refused to remove her for cause.

On appeal, the Utah Court of Appeals did state that the prospective juror’s initial comments did not raise an inference of bias such that the juror should have been excused for cause. The court based its conclusion, however, on the juror’s responses to the trial court’s many questions. We think the Jonas analysis confuses the two-part test of Cobb⁶ and reject it to the extent it holds that being a victim of the same crime with which the defendant is charged does not raise an inference or question of bias such that the court must— just as the Jonas court did — investigate further to probe the juror’s ability to be fair and impartial.

B. Investigation Necessary to Probe Potential Bias

The level of investigation necessary once voir dire reveals potential juror bias will vary from case to ease and is necessarily dependent on the juror’s responses to the questions asked. Nevertheless, the exploration should not be merely pro forma.

When an inference of bias is raised, the inference is generally not rebutted simply by a subsequent general statement by the juror that he or she can be fair and impartial. As the supreme court has stated, “[a] statement made by a juror that she intends to be fair and impartial loses much of its meaning in light of other testimony and facts which suggest a bias.” State v. Hewitt, 689 P.2d 22, 26 (quoting Jenkins, 627 P.2d at 536). Accordingly, “[t]he court, not the juror, must determine a juror’s qualifications.” State v. Jones, 734 P.2d 473, 475 (Utah 1987) (quoting Brooks II, 631 P.2d at 884).

Utah case law is helpful in determining the depth of inquiry which has been sufficient to clarify potential juror bias. In Bailey, 605 P.2d at 771, the defendant was charged with distribution of a controlled substance. At trial, the only witness to testify was the undercover police officer who made the arrest. During voir dire of the jury panel, prospective jurors were asked if they would be inclined to give the testimony of a police officer greater weight than that of a witness who was not a police officer. A prospective juror stated, “you can rely upon their testimony and their background to the utmost.... I would want to stand behind them a hundred percent.” Id. at 768. In response to this facial comment of bias, the trial court responded by asking only one question as to the juror’s expressed bias. Being satisfied that the juror could act impartially, the court did not remove the juror for cause. Id. Ultimately, the defendant was convicted and appealed. The supreme court reversed and remanded, noting that the trial court’s minimal investigation and questioning was insufficient to rebut the inference of bias. The court stated that “[t]he [trial] Court’s one question was not sufficient to rebut this inference,” adding that “the Court had insufficient evidence on which to base a conclusion that there was no bias....” Id.

In Jonas, 793 P.2d at 902, the trial judge asked eleven different questions in establishing the impartiality of a prospective juror who had been the victim of a theft, the crime with which the defendant was charged. Similarly, in Salt Lake City v. Tuero, 745 P.2d 1281 (Utah Ct.App.1987), the trial court made “significant efforts” to determine if a potential juror in a case involving driving under the influence of alcohol could remain unbiased given the fact that his wife had been “broadsided by a drunk driver.” Id. at 1282.

The depth of questioning necessary is further illustrated by a case very similar to the instant case; Brooks II, 631 P.2d at 878. Brooks II involved a defendant charged with burglary for unlawfully entering a basement apartment with the intent to commit theft. During voir dire of the jury venire, two prospective jurors stated that they had been victims of the same or similar crimes. One juror responded that his home had been burglarized twice. The other juror noted that she had been the victim of an armed robbery and assault in her home. Because of the possible biases created by this prior victimization, the court asked multiple questions of these two jurors. Both jurors indicated that they had strong feelings about their experiences but felt that they could render a fair and impartial verdict based on the evidence. Both jurors, therefore, were retained.

On appeal, the supreme court held that the jurors had not been rehabilitated by the court’s questioning and should have been excused for cause. See id.; see also Gotschall, 782 P.2d at 459 (A prospective juror made statements that evidenced a lack of understanding of the prosecution’s burden of proof and the defendant’s right not to take the stand. The trial judge asked the juror fourteen questions before determining that he need not be excused for cause. The supreme court affirmed.); Cobb, 774 P.2d at 1123 (A prospective juror in a second-degree murder trial expressed strong feelings against the taking of human life. This juror was asked eleven questions before the court determined that he could serve impartially. The supreme court affirmed.); ⁷ Julian, 771 P.2d at 1061 (Prospective juror in a trial involving charges of sodomy on a child made comments which facially indicated she was predisposed to believe the victims’ testimony and was thus incapable of rendering an impartial verdict. This juror was asked twenty separate questions before the trial court decided she could act impartially. On appeal, the supreme court held that the juror had been rehabilitated.); Tuero, 745 P.2d at 1283 (The wife of a prospective juror in a case involving driving under the influence of alcohol had been “broadsided by a drunk driver.” The court made “significant efforts” to determine that this juror could remain unbiased. The court of appeals affirmed.); Layton City v. Bennett, 741 P.2d 965, 967 (Utah Ct.App.) (The defendant in a trial involving driving under the influence of alcohol believed that two prospective jurors were partial. One juror was associated with Mothers Against Drunk Drivers; the other juror was a reserve police officer in an adjoining city. Before these jurors were impaneled, they gave “substantial assurances,” by way of responses to “specific, detailed questioning” by the court, that they could be fair and impartial. The court of appeals affirmed.), cert. denied, 765 P.2d 1277 (1987).

The dissent contends that the instant case is analogous to Hornsby v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 758 P.2d 929 (Utah Ct.App.1988), claiming this court in that case held that one general question to prospective jurors was sufficient to detect any bias which would warrant removal for cause. See id. at 932. We disagree. Hornsby did not focus on the issue of removal of a juror for cause.

In Hornsby, the plaintiff was seeking recovery from the Church of Jesus Christ of Latter-Day Saints (“L.D.S. Church”) for injuries sustained by the plaintiff when he swerved his motorcycle to avoid colliding with a church-owned cow on a public highway. At the time of voir dire, plaintiff proposed several questions to the trial court regarding the affiliation of the prospective jurors with the L.D.S. Church. The trial court rejected these questions, stating that the religious preferences of the jurors were none of the court’s business. Instead, the court asked one general question:

Are there any of you who feel that you would have trouble being an impartial juror because of feelings you may have either pro or con with regard to the L.D.S. Church that you think might affect your ability to be a fair and impartial juror in this case? If so, I’d like you to raise your hand.

Id. at 931-32.

Hornsby objected to the trial court's action and subsequently filed an appeal, claiming that the trial court erred in limiting voir dire regarding the panel’s religious affiliations. Accordingly, the issue on appeal, as clearly stated by this court, was whether the trial court erred in refusing to voir dire members of the jury panel concerning their affiliation with the L.D.S. Church such that the defendant could knowingly exercise his peremptory challenges. We found the court had erred by limiting voir dire.

The dissent refers to a small portion of dicta in Hornsby which can be misleading when taken out of context: “[t]he question asked by the trial court was sufficient to detect any actual subjective bias to warrant a challenge for cause_” Id. at 932. The dissent, however, fails to mention the following sentence: “[bjecause it is not necessary to this appeal, we do not decide whether the voir dire was sufficient to reveal circumstances of relationships that would warrant challenges for cause....” Id.

Read in its full context, we believe that Hornsby supports our holding today. The trial judge in Hornsby asked one general question to the jury panel regarding whether the juror’s affiliation with the L.D.S. Church would affect the juror’s ability to be fair and impartial. This question was designed to detect any potential bias which would require further probing. Similarly, the trial judge in the instant case asked the jurors’ if any of them had been the victim of a crime similar to that with which the defendant was charged. In Hornsby, no juror responded positively and, therefore, there was no need to probe further to investigate this potential bias. In the instant case, however, three jurors did respond affirmatively. The fact that the Hornsby court was not required to probe further when no potential bias was detected does not relieve the trial court in the instant case of its duty to probe further when potential bias was detected.

We now turn to the sufficiency of the trial court’s questioning in the instant case. Attempting to rebut the potential bias created when three jurors admitted to being victims of the same crime for which the defendant was on trial, the trial judge simply asked:

Those three of you who have responded, recognizing that this is a different time and place and circumstance, would that experience, having been the victim of that type of a crime, affect your ability to be fair and impartial in this case, that is, would you be unable to set aside that experience and hear the evidence in this case and rule on the evidence based upon what you hear and the credibility of the witnesses? If you would not be able to do so, I want you to raise your hand.

None of the jurors raised his hand, nor were any allowed to make a verbal response. We are concerned that the one general question was not sufficient to rebut the potential bias raised by juror Vau-Leeuwen’s comment regarding his prior victimization in light of the fact that the court posed this question only to the group of prospective jurors who had been victims of similar crimes without probing each individual juror separately to determine the effect of the experience on the particular juror. There was never a personalized dialogue which would have given VanLeeu-wen a chance to express his latent feelings.

Our concern about juror VanLeeuwen is further compounded by the fact that the trial judge initially agreed to remove all three prospective jurors based upon their identical passive responses on the grounds that they had been victims of the same crime and, therefore, could not be impartial. Once a trial judge has found that a juror should be removed for cause, it is highly unusual for this juror to be reinstated without further voir dire to develop new facts to support the change of direction.⁸

The trial judge subsequently reinstated VanLeeuwen on the panel, explaining his extraordinary action by stating that Van-Leeuwen’s experience had occurred in a foreign country and, therefore, would not affect his impartiality. The dissent relies on the second finding of the trial judge that VanLeeuwen could serve impartially. We are unpersuaded. The trial judge’s conclusion came immediately after he had removed VanLeeuwen for cause, presumably because VanLeeuwen could not be fair and impartial. Subsequent to VanLeeuwen’s removal, the trial judge received no new information on which to logically base his conclusion that VanLeeuwen could act as a fair and impartial juror and thus should be reinstated.

Additionally, there is no logical basis for assuming that a victim of an identical crime in a foreign country will be less biased. In actuality, based on the meager information gathered by the trial court, VanLeeuwen was objectively the most likely of the three previously victimized jurors to be biased. Juror Hoyt was the victim of theft and use of his credit card, not forgery. Additionally, although juror Tyler was the victim of an identical crime, that experience occurred thirty years ago in 1961. The remoteness of the incident suggests less possibility of current bias. In contrast, VanLeeuwen was the victim of a recent identical crime involving a substantial dollar amount.

Based upon the totality of the circumstances involved in this voir dire, we cannot say the record supports a finding that Van-Leeuwen was a fair and impartial prospective juror. Contrary to the statement of the dissent, we do not reverse this case based solely on the fact that only one question was asked by the trial judge.⁹ Our reversal is based on the totality of the circumstances surrounding voir dire. We are troubled that the three jurors were not questioned individually and each allowed to respond verbally. Additionally, VanLeeu-wen’s reinstatement was the product of an irregular procedure in that the trial judge originally removed VanLeeuwen for cause and then without further fact-gathering reversed his decision. Furthermore, we find no persuasive distinction between Van-Leeuwen and the other two prospective jurors who had also been victims of similar crimes and who the trial judge presumably found could not be fair and impartial as he removed them for cause. We therefore reverse and remand for a new trial.

GREENWOOD, J., concurs.

This opinion replaces the opinion of the same name issued on April 2, 1991.

1

. The dissent contends that VanLeeuwen was never stricken for cause at the sidebar conference. The official jury list, however, indicates that all three jurors were initially removed for cause at this conference. On this list, the names of jurors Hoyt, Tyler and VanLeeuwen are crossed out with the notation "for cause” written next to all three names. Subsequently, the notation "foreign country" was included next to juror VanLeeuwen’s name, indicating the judge felt that VanLeeuwen should be reinstated because his experience occurred in a foreign country.

The dissent correctly states that since no record was made of the initial conference, "[w]e must rely ... on the subsequent reconstruction of that conference made on the record_” Contrary to the dissent’s assertion, however, this reconstruction support’s defendant’s view. Counsel for defendant reconstructed the conference as follows:

I believe at the end of voir dire the Court gave me an opportunity to — or the Court asked me if I had any challenges, if I passed the panel for cause, and I said no and approached the bench and I enumerated three individuals who I felt should be challenged for cause. Those individuals were Mr. Mark Hoyt, Mr. Chris VanLeeuwen, and Mr. James Tyler, and I believe at that time the Court did strike the three individuals for cause. The bases were they were victims of a similar crime to Mr. Woolley’s, the Defendant in this case.

Shortly thereafter the Court reinstated Mr. VanLeeuwen indicating that because the crime had been perpetrated in a foreign country that that was a significant difference.

Neither the state nor the court objected to this reconstruction in the record below. Furthermore, the state does not assert a contrary view of the events in its brief on appeal.

The dissent correctly notes that subsequently, the court did state that it “determined based on [VanLeeuwen's] responses, not to strike him." This language, however, is taken out of context as it refers not to the court’s initial decision to remove VanLeeuwen but only to the court’s subsequent final decision to leave VanLeeuwen on the panel.

2

.Previously, Utah courts have used different phraseology in defining the discretion afforded a trial judge in dismissing a juror for cause. See, e.g., Gotschall, 782 P.2d at 459 (motions to dismiss prospective jurors are within the sound discretion of the trial court); State v. Hewitt, 689 P.2d 22 (Utah 1984) (in reviewing jury selection, some deference must be accorded the discretion of the trial court); State v. Lacey, 665 P.2d 1311 (Utah 1983) (the question of the partiality of prospective jurors remains largely within the discretion of the triai court); Jenkins v. Parrish, 621 P.2d 533 (Utah 1981) (applying the "some deference” standard); State v. Dixon, 560 P.2d 318 (Utah 1977) (matter of possible bias or prejudice of jurors rests within the sound discretion of the trial court); State v. Jonas, 793 P.2d 902 (Utah Ct.App.), cert. denied, 804 P.2d 1232 (Utah 1990) (citing Gotschall as the appropriate standard of review); State v. Suarez, 793 P.2d 934 (Utah Ct.App.1990) (citing Gotschall as the appropriate standard of review). We do not believe, however, the different wording has actually affected the extent of deference afforded on appeal.

3

. Although the Jenkins court applied a “some deference" standard rather than the "sound discretion” standard, regardless of the standard applied, the judge’s exercise of discretion must be viewed in light of this factor.

4

. See, e.g., State v. Cantu, 778 P.2d 517 (Utah 1989) (holding that defendant was entitled to new trial where prosecutor struck Hispanic juror to get even with defense counsel who had insisted that Hispanics be included on the panel); State v. Pike, 712 P.2d 277, 279-81 (Utah 1985) (discussing rationale for presumption of prejudice where improper contact between jurors and witnesses or court personnel occurs).

5

. The dissent notes that in 1988, the United States Supreme Court held in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988) that as long as the jury which actually sat for the case was impartial, it is unimportant that defendant was forced to use a peremptory challenge to excuse a prospective juror. The dissent then states that if we find that VanLeeu-wen should have been removed for cause, we must reevaluate the Hewitt line of cases in light of Ross.

The Utah Supreme Court was faced with this precise issue in 1989 in Gotschall and Julian after Ross was decided. We assume that the court considered Ross when deciding Gotschall and Julian, but chose to stay with its long-standing rule that "[a] court commits prejudicial error if it forces a party to exercise a peremptory challenge to remove a prospective juror who should have been removed for cause.” Gotschall, 782 P.2d at 461; see also Julian, 771 P.2d at 1064 n. 11. Accordingly, we assume this is still the law in Utah.

6

. This test was summarized in Cobb when the Utah Supreme Court stated that "[wjhen comments are made which facially question a prospective juror’s impartiality or prejudice, an abuse of discretion may occur unless the challenged juror is removed by the court or unless the court or counsel investigates and finds the inference rebutted.” Cobb, 774 P.2d at 1126.

7

. The dissent cites Cobb, 774 P.2d at 1123, as a case in which the circumstances are “similar” to those of the instant case. The juror in Cobb referred to by the dissent disclosed during voir dire that she had known the prosecutor 15 years earlier when he was a senior in high school. In comparing Cobb to the instant case, however, the dissent fails to acknowledge several important distinguishing facts. First, unlike our case, the juror was individually questioned and asked to explain the relationship and whether it would affect her impartiality. Furthermore, the use of the language that the relationship "was not that which would warrant an inference of bias” is taken out of context as it comes in light of her answers to the questions probing her potential bias. Additionally, the Cobb court did not engage in the extraordinary practice of initially dismissing a juror for cause and then inexplicably reinstating him as did the trial court in the instant case.

8

. The initial removal of the three challenged jurors and subsequent reinstatement of juror VanLeeuwen took place during a sidebar conference outside the presence of the court reporter. Consequently, no record of this conference was made.

9

. The dissent faults defense counsel for not asking for further questions to probe the potential bias of the three jurors, claiming that this failure constituted a waiver of defendant's right to complain on appeal. This criticism ignores the fact that after the judge’s questioning, counsel moved to remove all three jurors for cause. This motion was granted and, therefore, there was no logical reason for counsel to encourage the court to probe further at that time.