A trio of decisions on preserving claims for appeal

State v. King, 2006 UT 3
State v. Winfield, 2006 UT 4
State v. Lee, 2006 UT 5

These cases were argued together, were all written by Justice Parrish, and were all released together today. They each consider proper standard of review when a party fails to object to a juror during voir dire. Lee further considers an unpreserved merger claim. Winfield also considers an unpreserved claim of insufficient evidence.

Juror Voir Dire

Essentially, these cases establish that normal rules of preservation apply to jury voir dire. Parties must make a specific, contemporaneous objection to the court’s conduct. Absent such an objection, claims of bias are reviewed only for plain error. Moreover, if the party affirmatively passes the jury for cause, any alleged error is invited, and the court will not consider it on appeal. In reaching these conclusions, the court relied heavily on the adversarial nature of the American justice system:

The preservation rule is grounded in our adversarial system of justice, which looks to the parties to zealously advocate their cause before an impartial fact finder. “The rule that points not argued will not be considered is more than just a prudential rule of convenience; its observance, at least in the vast majority of cases, distinguishes our adversary system of justice form the inquisitorial one.”

(quoting United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J. concurring).

With regard to invited error, the court quoted State v. Litherland, 2000 UT 76 ¶ 32:

It is generally inappropriate for a trial court to interfere with counsel’s conscious choices in the jury selection process, notwithstanding the existence of a reasonable basis for objecting to those jurors.

The supremes repeated a caveat from Litherland, however:

Only where a juror express a bias or conflict of interest that is so strong or unequivocal as to inevitably taint the trial process should a trial court overrule trial counsel’s conscious decision to retain a questionable juror.

Insufficient Evidence

The standard of review for an unpreserved sufficiency claim is already well settled-law. See State v. Holgate, 2000 UT 74. But the court clarified that a challenge to the bindover does not preserve a challenge to the sufficiency of the evidence at trial.

Merger

Lee claimed the trial court plainly erred by failed to sua sponte merge his aggravated kidnapping conviction into his aggravated assault conviction. The supreme court decided to take this occasion to clarify the relationship between the merger doctrine as explained in State v. Finlayson, 2000 UT 10, 994 P.2d 1243, and the merger provision in Utah Code Ann. § 76-1-402(3).

Essentially, section 76-1-402(3) applies to the merger of lesser included offenses, such as robbery and theft. Finlayson, on the other hand, applies to the merger of crimes that, in some factual scenarios, are so related that they must merge, like kidnapping and rape (every rape involves detention of victim to some degree). The court directs future litigants to consider both section 76-1-402 and Finlayson:

[A] proper merger analysis requires consideration of both section 76-1-402 and the Finlayson factors. If one conviction is a lesser included offense of another conviction under section 76-1-402, the convictions merge. If not, Finlayson factors must be assessed to determine whether merger is appropriate.