20 19 UT App 150



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

S TATE OF U TAH , Appellee

,

v. W AYLON K EITH R IDDLE , Appellant

.

Opinion

N o. 20180599

- CA
Filed September 12, 2019

Sixth District Court, Kanab Department
The Honorable Wallace A. Lee
No. 161600142

Dale W. Sessions

, Attorney for Appellant
Sean D. Reyes and Jonathan S. Bauer

, Attorney s for Appellee

J UDGE M ICHELE M. C HRISTIANSEN F ORSTER authored th is Opinion

, in which J UDGES D AVID N. M ORTENSEN and R YAN M. H ARRIS concurred

.

CHRISTIANSEN FORSTER

, Judge :

¶1 Waylon Keith Riddle challenges the trial court’s denial of
his motion to set asi de and vacate his convictions on four counts of distribution of a controlled substance. We affirm.

BACKGROUND

¶2 Three days after Riddle’s jury trial was completed, his trial counsel had lunch with the Kane County Atto rney, Robert Van Dyke. Van Dyke had not participated in Riddle’s trial, which was tried by a deputy county attorney. While they were eating, a man approached Van Dyke to talk about some paperwork. Riddle’s counsel recognized the man as one of theState v. Riddle

20180599

- CA 2 2019 UT App 150 jurors in Riddle’s trial. Van Dyke informed counsel that the juror was his personal accountant and that the paperwork referred to was Van Dyke’s tax return. Although the j urors had been asked during voir dire about their acquaintance with the lawyers, parties, and witnesses in the case, they were never asked about
their relationsh ip to other individuals in the Kane County A ttorney’s office.

¶3 Based on the business relationshi p between Van Dyke and the juror, Riddle moved the court to set aside the jury’s verdict, vacate his convictions , and order a new
trial

. Riddle acknowledged that there was no evidence that the juror was actually biased based on his professional relation ship with Van Dyke but nevertheless asserted that the juror’s relationship with Van Dyke violated his right to a fair and impartial jury. The trial court denied Riddle’s motion, and Riddle now appeals.

ISSUE AND STANDARD O F REVIEW

¶4 Riddle asserts that the court erred in denying his motion to set aside the jury’s verdict and grant him a new trial. So long
as the trial court has correctly applied the law, we review its “ruling on a motion for a new trial under an abuse of discretion
standard.” State v. De La Rosa , 2019 UT App 110, ¶ 4, 445 P.3d 955 (quotation simplified).

ANALYSIS

¶5 Riddle urges us to hold that the very existence of an undisclosed p rofessional relationship between Van Dyke and the juror created an appearance of impropriety that required a new

tr ial. While he asserts that this is a matter of first impression, our case law is clear that a jury verdict need not be reversed on grounds of juror partiality when there is no evidence of bias on the part of the juror.State v. Riddle

20180599

- CA 3 2019 UT App 150 ¶6 Rule 24 of the Utah Rules of Criminal Procedure permits trial courts to “grant a new trial in the interest of justice if there is any error or impropriety which had a substantial adverse effect upon the rights of a party.” Utah R. Crim. P. 24(a). “ [T]he Fourteenth Amendment Due Process Clause assures each defendant the fundamental right to a fair trial.” State v. Arguelles

, 2003 UT 1, ¶ 97, 63 P.3d 731. “One touchstone of a fair tria l is an impartial trier of fact

— a jury capable and willing to decide the case solely on the evidence before it.” McDonough Power Equip.

, Inc. v. Greenwood , 464 U.S. 548, 554 (1984) (quotation simplified). Thus, one “error or impropriety,” see Utah R. Crim. P. 24(a), that may justify granting a new trial to a defendant is the existence of juror bias. Nevertheless

, “due process does not require a new trial every time a juror has been placed in a potentially compromising situation.” Smith v. Phillips , 455 U.S. 209, 217 (1982). Likewise, a new trial under rule 24 is appropriate only where the alleged “error or impropri ety . . . had a substantial adverse effect upon the rights of a party.” Utah R. Crim. P. 24(a). Thus, to obtain a new trial on grounds of juror partiality, the defendant must “prove actual bias” on the part of the juror. See Smith , 455 U.S. at 215.

¶7 Riddle concedes that there is no evidence of actual bias in this case but nevertheless asserts that we should employ the
doctrine of implied bias to determine that “due to the financial and or emotional relationship between the juror and [Van Dyke]
. . . there ma y i ndeed have been implied bias.” In theory, implied bias may be found “where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial
in his deliberati ons under the circumstances.” 1 Johnson v. Luoma

,

1

. This is essentially the same test used to examine for

- cause challenges to jurors based on “[t]he existence of any social, legal, business, fiduciary or other relationship,” which exa mines whether the “relationship wh en viewed objectively, would suggest to reasonable minds that the prospective juror would be (continued...)State v. Riddle

20180599

- CA 4 2019 UT App 150 425 F.3d 318, 326 (6th Cir. 2005) (quotation simplified) . However

, the continued viability of this doctrine has been in question since
the United States Supreme Court adopted the actual bias requirement in S mith v. Phillips , 4 55 U.S. 209 (1982), and the Supreme Court has never explicitly endorsed the concept of implied bias. See English v. Berghuis , 900 F.3d 804, 816 (6th Cir. 2018).

¶8 But even assuming , without deciding, that the doctrine remains viable, Riddl e has presented no evidence from which
the trial court could have determined that the relationship between the juror and Van Dyke implied that the juror was biased. Implied bias applies only to “extreme situations” such as where it is revealed “that the ju ror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal
transaction.” Smith , 455 U.S. a t 222 (O’ Connor, J.

, concurring); see also Johnson , 425 F.3d at 326. This is not such a situation.

¶9 The trial court stated that had it known that the juror was Van Dyke’s accountant, it “would not have found that to be a valid basis for a challenge for cause,” especially given the “small community” in which the trial took place. The court found that the “relationship would no t sugg est to reasonable minds that
that juror would be, simply by virtue of that relationship, unable or unwilling to return a verdict which would be free of
favoritism.” See Utah R. Crim . P. 18(e)(4). We see no error in the trial court’s findings.

¶10 Riddle presented the court with no information regarding the relationship between the juror and Van Dyke apart from the fact that the juror was Van Dyke’s accountant. Nothing in the

(...continued) unable or unwilling to return a verdict which would be free of favoritism.” Utah R. Crim. P. 18(e)(4).State v. Riddle

20180599

- CA 5 2019 UT App 150 nature of this professional relationship , by itself, calls into question the juro r’s ability to remain indifferent and impartial

. Compare United States v. Allsup , 566 F.2d 68 , 71 (9th Cir. 1977) (holding that it could be inferred that employees who worked at
a different branch of the bank the defendant was accused of robbing would be b iased due to their “potential for subs tantial emotional involvement”), and State v. Brooks , 563 P.2d 799, 800

– 02 (Utah 1977 ) (determining that a juror who was a “neighbor and personal friend of the prosecution’s witness” and another juror who was “good fri ends” with the arresting officer and a
coworker of his wife could not be “deemed indifferent or impartial” and that the trial court had committed prejudicial
error in decli ning to dismiss them for cause), with United States v. Bradshaw , 787 F.2d 1385, 1390

– 91 (10th Cir. 1986) (holding that the fact “that a juror had prior business dealings with key government witnesses,” without more, wa s insufficient to establish juror impartiality), and State v. Evans , 2001 UT 22, ¶ 28, 20 P.3d 888 (holding that “the exis tence of a familial relationship between a juror and a member of the District Attorney’s office, in and of itself, is not necessarily the basis for a challenge for cause ” (quotation simplified) )

. Moreover, Van Dyke did not even participate in the case. Rid dle himself asserts only that the relationship “may” have resulted in implied bias. But a mere possibility of bias is insufficient to demonstrate implied bias, let alone a ctual bias

.

¶11 It is axiomatic that, with rare exceptions, “all errors are
reviewed for harmlessness.” State v. Collins , 2014 UT 61, ¶ 28, 342 P.3d 789; see also Utah R. Crim. P. 24(a) (stating that a new trial may be granted only “if there is any error or impropriety which
had a subst antial adverse effect upon the r ights of a party”); id.
R. 30 (a) (“An y error, defect, irregularity or variance which does
not affect t he substantial rights of a party shall be disregarded.”). “To conclude that an error was prejudicial, we must find not a mere possibility, but a reasonable likelihood that the error
affected the result.” State v. Maestas , 2012 UT 46, ¶ 308, 299 P.3d 892 (quotation sim plified)

. By asserting that the business
relat ionship between the juror and Van Dyke was aloneState v. Riddle

20180599

- CA 6 2019 UT App 150 sufficient to require the court to find that Riddle did not have a fair trial, Riddle is essentially asking us to presume prejudice. 2 This we cannot do under the circumstances of this case

. Because Riddle ma de no showing of bias on the part of the juror, the trial
court did not err in concluding that e mpaneling the juror did not
have “a substantial advers e effect” on Riddle’s rights and denying Riddle’s motion to set aside the jury’s verdict. 3 See Utah
R. Cri m. P. 24(a).

2

. Riddle does assert that he was denied the opportunity to employ a peremptory challenge . But to the extent that this argument can be construed as an allegation of prejudice, it does not provide a basis for r eversal in the absence of juror bias. See State v. Evans , 2001 UT 22 , ¶ 29, 20 P.3d 888 (rejecting a defendant’s assertion that he was prejudiced by his “inability to use a peremptory challenge” because the “defendant had not asserted that the jury that sat was partial or biased”); c f. State v. Sessions , 2014 UT 44, ¶ 52, 342 P.3d 738 (holding that to satisfactorily challenge the loss of peremptory challenges, a defendant must establish “that an actually biased juror sat on the panel that convicted him”).

3

. In addition to analyzing Riddle’s motion pursuant to rule 24, the trial court employed t he two

- part test concerning juror bias
annunciated in McDonough Power Equipment, Inc. v. Greenwood

, 464 U.S. 548 (1984). In McDonough , a juror failed to respond to a
q uestion regarding whether he or anyone in his family had ever
“sustained a ny severe injury . . . that resulted in any disability or prolonged pain and suffering.” Id. at 5 50 (quotation simplified).
The C ourt held “that to obtain a new trial in such a situa tion, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” Id. at 556. Riddle asserts that the tr ial
court’s reliance on McDonough was misplaced because there was no allegation in this case that a juror answered a question (continued...)State v. Riddle

20180599

- CA 7 2019 UT App 150 CONCLUSION

¶12 Because Riddle presented no evidence to suggest that the juror’s relationship with Van Dyke resulted in either implied or actual bias, he cannot establish that he was denied his righ t to a fair trial due to jury partiality. We there fore affirm the trial court’s denial of his motion to set aside the jury verdict.

(...continued) untruthfully. While the McDonough test is not directly on point
here , it is not entirely inapplicable. The second prong of the
McD onough test examines whether “a correct response would have provided a valid basis for a challenge for cause.” Id. As discussed above, this is the same test used to examine implied juror bias. See supra ¶ 7 & note 1

. The trial court determined that
it would not have sustained a for

- cause challenge in this case even if it had known of the relationship between Van Dyke and the juror because the “ relationship would not suggest t o reasonable minds that that juror would be, simply by virtue of
that relations hip, unable or unwilling to return a verdict which
would be free of favoritism

. ” This was merely a res tatement of
the court’s rule 24 determination that Riddle did not demonstrate an “impropriety which had a substantial adverse impact upon” his rights beca use there was “no evidence that th[e] jur or was biased against” Riddle. Thus, even accepting
Riddle’s assertion that the McDonough test was not a pplicable in this case, any error by the court in employing McDonough was harmless because the outcome is the s ame under either a rule 24

or a McDonough analysis.