State v. Bess , 2019 UT 22 ( 2019 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 22IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
LANCE BESS,
Appellant.
No. 20170746
Filed June 3, 2019
On Certification from the Court of Appeals
First District, Box Elder
The Honorable Brandon J. Maynard
No. 151100329
Attorneys:
Sean D. Reyes, Att’y Gen., John T. Neilsen, Asst. Solic. Gen.,
Salt Lake City, for appellee
Paul G. Cassell, Salt Lake City, Lindsay Jarvis, South Jordan,
for appellant
JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PEARCE joined.
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 Lance Bess, a detective with the Unified Police Department,
was bird hunting with several family members when another hunter
accidentally fired three shots in their direction. When the firing
stopped, Bess angrily confronted the hunter’s group with his service
weapon drawn and held at his side. As a result of this incident, the
State charged Bess with one count of threatening with or using a
STATE v. BESS
Opinion of the Court
dangerous weapon in a fight or quarrel (threatening with a
dangerous weapon).1 He was convicted after a trial and timely
appeals.
¶2 The relevant criminal statute makes an exception for
persons acting in self-defense and peace officers in performance of
their duties (performance of duties). The court of appeals certified
this case to us to determine whether these exceptions are elements of
the offense or affirmative defenses.
¶3 Bess argues that the district court’s treatment of these
exceptions as affirmative defenses caused a structural error in the
trial. He also argues that the court wrongly excluded a declaration
from a juror in support of his motion for a new trial and that the
court gave the jury an unconstitutionally coercive deadlock
instruction.2
¶4 We affirm.
BACKGROUND3
¶5 Bess and his family were hunting at public shooting
grounds when an inexperienced hunter shot in their direction.
Despite the family’s attempts to alert the shooter to their presence,
the shooter fired twice more. After the shooting stopped, Bess—still
holding his shotgun—drew his service weapon and approached the
hunting party. He shouted profanities at the group and demanded to
know who had shot at his family. Admitting fault, an adult man in
the hunting party acknowledged that a young, inexperienced hunter
in their group had accidently fired shots in the family’s direction.
____________________________________________________________
1 See UTAH CODE § 76-10-506(2) (outlining the elements of
threatening with or using dangerous weapon in fight or quarrel).
2 A deadlock instruction, also known as an Allen charge, is “[a]
supplemental jury instruction given by the court to encourage a
deadlocked jury, after prolonged deliberations, to reach a verdict.”
Allen Charge, BLACK’S LAW DICTIONARY (10th ed. 2014); see also Allen
v. United States, 164 U.S. 492 (1896).
3 “On appeal from a jury verdict, we view the evidence and all
reasonable inferences in a light most favorable to that verdict and
recite the facts accordingly.” State v. Pinder, 2005 UT 15, ¶ 2, 114
P.3d 551 (citation omitted) (internal quotation marks omitted).
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And the young hunter was in tears, upset at his mistake. The man
requested that Bess put his service weapon away. When Bess
refused, the man suggested that they call the police. In response,
Bess said, “[G]o right ahead, I am a fucking cop.” The man then
asked to see Bess’s badge, but Bess denied having it with him. After
the man expressed doubts as to Bess’s credentials, Bess quickly
flashed his badge at them. Bothered by the encounter, the man from
the hunting party notified the police.
¶6 The State ultimately charged Bess with one count of
threatening with a dangerous weapon, and the case proceeded to
trial.
¶7 At the beginning of trial, over Bess’s objection, the district
court provided the jury with the following instruction:
Lance Bess is charged with committing [the offense of]
threatening with or using a dangerous weapon in a
fight or quarrel. You cannot convict him of this offense
unless, based on the evidence, you find beyond a
reasonable doubt each of the following elements:
No. 1: That the defendant, Lance Bess;
No. 2: In the presence of two or more persons;
No. 3: Intentionally, knowingly or recklessly;
No. 4: Drew or exhibited a dangerous weapon;
No. 5: In an angry and threatening manner.
¶8 Bess argued that the jury instruction omitted what he
termed “negative elements” of the charged crime, specifically that
(1) he did not act in self-defense and (2) he was not a peace officer in
performance of his duties. In overruling Bess’s objection, the district
court concluded that these provisions of Utah Code section 76-10-506
were affirmative defenses, not elements. Accordingly, the district
court explained that some evidence supporting the defenses must be
presented by either party before it would instruct the jury on them.
¶9 After the defense rested, the district court determined that
sufficient evidence had been presented to instruct the jury on both
affirmative defenses. Thus, before closing arguments, the court gave
its final instructions on the law. In addition to listing the five
elements included in the preliminary jury instruction, the
replacement instruction provided that the jury could not convict
Bess unless it also found beyond a reasonable doubt that he “did not
draw or exhibit the weapon in self-defense” and that he “was not a
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STATE v. BESS
Opinion of the Court
peace officer . . . acting in the performance of his duties.” The final
jury instruction was the same instruction that Bess had requested at
the beginning of trial.
¶10 During its closing argument, the State noted that it had to
prove “essentially seven elements” beyond a reasonable doubt,
including disproving the affirmative defenses. The defense also
focused their closing arguments on the affirmative defenses.
¶11 After deliberating for approximately three hours, the jurors
sent a note to the judge indicating they were deadlocked. Bess
moved for a mistrial, but the district court denied the motion and
instead read the jury the deadlock instruction from the Model Utah
Jury Instructions. The jury deliberated for three more hours and
ultimately convicted Bess. When polled, each juror affirmed that his
or her verdict was guilty.
¶12 Bess then moved for a new trial, arguing that the district
court had erroneously omitted two “negative elements” from the
preliminary jury instruction. The motion included a declaration from
Bess’s trial counsel summarizing several conversations she had had
with jurors regarding the difference between the preliminary and
final elements instructions. According to Bess’s trial counsel, several
jurors stated that they were surprised by the change in the jury
instructions and said that they could have been listening for
evidence supporting those provisions if they had known to do so
from the beginning of trial.
¶13 The parties stipulated to a briefing schedule for the motion
for a new trial. Bess agreed to submit his reply to the State’s response
to the motion by 5:00 p.m. on August 11, 2017. However, on the due
date, Bess did not file his reply memorandum until shortly after
7:00 p.m. Along with the motion, he attached a juror declaration
impeaching the verdict and an accompanying motion to supplement
the new trial motion.
¶14 The State moved to strike the juror statements impeaching
the verdict, arguing that they violated rule 606 of the Utah Rules of
Evidence. At oral argument on these motions, the district court, on
its own, excluded both parties’ late filings, noting that they had both
been “very adamant about deadlines.” The court thus decided to
strike any untimely materials, including Bess’s reply and
supplemental materials.
¶15 The district court then denied the motion for a new trial on
the merits, reasoning that “[a] plain reading of the statute
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demonstrates self-defense and performance-of-duties were included
as exemptions, which are defined and construed as affirmative
defenses.” The court explained that the State was therefore not
required to negate the defenses unless and until sufficient evidence
was presented to put them at issue. The court observed that Bess had
not been prejudiced in any event, because the jury was notified that
the instructions were subject to amendment and the final
instructions included all of the language Bess had requested. As to
the deadlock instruction, the district court noted that it had “simply
followed the standard approach.”
¶16 Bess timely appealed. The court of appeals certified the
case to us to consider whether Utah Code section 76-10-506(4), which
provides that “[t]his section does not apply to a [peace officer] in
performance of the person’s duties,” constitutes an element of or an
affirmative defense to the charge of threatening with a dangerous
weapon. We have jurisdiction pursuant to Utah Code section
78A-3-102(3)(b).
STANDARD OF REVIEW
¶17 We review a district court’s denial of a motion for a new
trial for an abuse of discretion. See State v. Martin, 2002 UT 34, ¶ 45,
44 P.3d 805. But “[w]e review the legal standards applied by the
[district] court in denying such a motion for correctness” and “the
[district] court’s factual findings for clear error.” State v. Maestas,
2012 UT 46, ¶ 103, 299 P.3d 892 (citation omitted) (internal quotation
marks omitted).
ANALYSIS
¶18 Bess raises a number of issues that fall into three categories.
First, he contends that the district court erred in concluding that
self-defense and performance of duties are affirmative defenses
rather than elements of the offense. As a result of the
mischaracterization, Bess argues that the preliminary jury instruction
misstated the State’s burden of proof, causing a structural trial error.
Second, Bess contends that the district court abused its discretion in
excluding as untimely the juror’s declaration impeaching the verdict.
Finally, he argues that the deadlock instruction was
unconstitutionally coercive under the circumstances presented here.4
____________________________________________________________
Bess also contends that the cumulative effect of these errors
4
mandates a new trial. “Under the cumulative error doctrine, we
(cont’d.)
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STATE v. BESS
Opinion of the Court
¶19 We conclude that under Utah Code section 76-10-506,5
self-defense and performance of duties are affirmative defenses, not
elements of the offense. We also determine that the juror’s
declaration was inadmissible under rule 606(b) of the Utah Rules of
Evidence, so we do not reach whether the court abused its discretion
in excluding it due to untimeliness. Finally, we conclude that Bess
failed to prove that the district court’s deadlock instruction was
unconstitutionally coercive under the circumstances here.
¶20 We address each of the errors Bess alleges in turn.
I. PRELIMINARY JURY INSTRUCTION
¶21 Before the parties gave their opening statements, the
district court read preliminary instructions to the jury to orient them
to the trial process. As Bess acknowledges, such instructions do not
have to address the elements of charged crimes. See UTAH R. CRIM. P.
19(a) (“After the jury is sworn and before opening statements, the
court may instruct the jury concerning . . . the elements and burden
of proof for the alleged crime . . . .” (emphasis added)). But here, the
court included an instruction outlining the elements of threatening
with a dangerous weapon. The instruction explained that the State
had to prove beyond a reasonable doubt that: (1) The defendant,
Lance Bess; (2) in the presence of two or more persons;
(3) intentionally, knowingly or recklessly; (4) drew or exhibited a
dangerous weapon; (5) in an angry and threatening manner.
¶22 Bess argues this instruction was incorrect because it
excluded two “negative elements” that the State was required to
disprove beyond a reasonable doubt: that the defendant was not
will reverse [a jury verdict or sentence] only if the cumulative effect
of the several errors undermines our confidence . . . that a fair trial
was had.” State v. Maestas, 2012 UT 46, ¶ 363, 299 P.3d 892(alterations in original) (citation omitted) (internal quotation marks
omitted). Because we conclude that the district court did not err,
the cumulative error doctrine does not apply and we decline to
grant Bess a new trial on this basis.
5 Utah Code sections 76-10-506 and -523 were recently amended.
Although the amendments are non-substantive, for clarity, we cite
to the 2014 version of the Utah Code, which was in effect at the
time of the incident in question and was used to draft the jury
instructions in this case.
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(1) acting in self-defense6 or (2) a peace officer in performance of his
duties.7 Over Bess’s objection, the district court concluded these were
affirmative defenses upon which the jury should not be instructed
until enough evidence was introduced in support of them to put the
defense at issue.
¶23 Bess contends that the plain language and legislative
purpose of the relevant statute, see UTAH CODE § 76-10-506, show
that these are elements of the crime. Alternatively, he argues that if
we determine the statute is ambiguous, the rule of lenity8 dictates
that the statute should be construed in his favor.
¶24 We first address Bess’s plain language argument. Bess
asserts that the text of the statute shows that self-defense and
performance of duties are elements because they appear within the
statute itself rather than in the sections of the code listing affirmative
defenses, see id. §§ 76-2-301 to -307, or in their own section as do
justification and self-defense, see id. §§ 76-2-401 to -402. He also notes
that section 506 does not label them as affirmative defenses. None of
this means that section 506 plainly designates the absence of
self-defense and performance of duties as elements of threatening
with a dangerous weapon.
____________________________________________________________
6 Utah Code section 76-10-506(2) references the self-defense
statute as an exception to the outlined offense. And section
76-10-506(3) outlines a particular variant of self-defense that is
specific to this crime, stating, “This section does not apply to a
person who, reasonably believing the action to be necessary in
compliance with Section 76-2-402 [(the self-defense statute)], with
purpose to prevent another’s use of unlawful force: (a) threatens
the use of a dangerous weapon; or (b) draws or exhibits a
dangerous weapon.”
7 See UTAH CODE § 76-10-506(4) (“This section does not apply to
a person listed in Subsections 76-10-523(1)(a) through (e) in
performance of the person’s duties.”). Relevant here, section
76-10-523(1)(c) lists “a peace officer of this or any other
jurisdiction.”
8 “The rule of lenity requires that we interpret an ambiguous
statute in favor of lenity toward the person charged with criminal
wrongdoing.” State v. Rasabout, 2015 UT 72, ¶ 22, 356 P.3d 1258.
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STATE v. BESS
Opinion of the Court
¶25 “[O]ur primary goal in interpreting statutes is to give effect
to the legislative intent, as evidenced by the plain language, in light
of the purpose the statute was meant to achieve.” State v. Burns, 2000
UT 56, ¶ 25, 4 P.3d 795. “[W]e read the plain language of the statute
as a whole[] and interpret its provisions in harmony with other
statutes in the same chapter and related chapters.” State v. Holm,
2006 UT 31, ¶ 16, 137 P.3d 726 (citation omitted) (internal quotation
marks omitted). We do not look to other interpretive tools unless we
conclude that the statute is ambiguous. See id. We thus proceed by
analyzing the plain language of Utah Code section 76-10-506 in
context.
¶26 The statute defining the offense of threatening with a
dangerous weapon appears in Chapter 10 of the Utah Criminal
Code, which deals with “Offenses Against Public Health, Safety,
Welfare, and Morals.” The statute is located in Part 5 of this chapter,
which contains Utah’s criminal weapons laws. Also in Part 5 is a
provision listing persons who are, for the most part, exempt from
these weapons laws. See UTAH CODE § 76-10-523(1)(a)–(f) (2014). The
list includes: United States marshals, federal officials who are
required to carry a firearm, peace officers, law enforcement officials
and judges as defined and qualified under Utah Code section
53-5-711, and common carriers engaged in the regular and ordinary
transport of firearms as merchandise. Id.
¶27 Although these persons are mostly exempt from Utah’s
weapons laws, the exemption is not absolute.9 Three criminal
weapons statutes, including the one at issue here, specify that these
officials are exempt from the offenses they circumscribe only under
certain circumstances—primarily that they are acting in self-defense
or in performance of their duties. See id. §§ 76-10-506, -508, -508.1. In
practice, this means that United States marshals, peace officers,
judges, or any of the other officials listed in section 523(1)(a)–(e) are
prohibited from: threatening others with or using a dangerous
weapon during a fight; discharging a firearm from a vehicle, near a
highway, or in the direction of any person; and discharging a firearm
in the direction of a building, habitable structure, or vehicle—unless
____________________________________________________________
9 The individuals listed in Utah Code section 76-10-523(1) are
not exempt from sections 506, 508, and 508.1 of this part or from
section 53-5-7, the Concealed Firearm Act.
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they are acting in self-defense or in performance of duties. See id.§§ 76-10-506, -508, -508.1, -523.
¶28 Looking to the specific language of section 506 in this
context, it states in relevant part:
(2) Except as otherwise provided in Section 76-2-402
[the self-defense statute] and for those persons
described in Section 76-10-503 [who are restricted from
possessing dangerous weapons], a person who, in the
presence of two or more persons, and not amounting to
a violation of Section 76-5-103 [aggravated assault],
draws or exhibits a dangerous weapon in an angry and
threatening manner or unlawfully uses a dangerous
weapon in a fight or quarrel is guilty of a class A
misdemeanor.
(3) This section does not apply to a person who,
reasonably believing the action to be necessary in
compliance with Section 76-2-402 [the self-defense
statute], with purpose to prevent another’s use of
unlawful force:
(a) threatens the use of a dangerous weapon; or
(b) draws or exhibits a dangerous weapon.
(4) This section does not apply to a person listed in
Subsections 76-10-523(1)(a) through (e) in performance
of the person’s duties.
Id. § 76-10-506(2)–(4).
¶29 The plain language of the statute shows that self-defense
and performance of duties are exemptions from the offense. The
statute states that it “does not apply” to a person listed in section
523(1)(a)–(e)—here, a peace officer—in performance of duties. With
regard to self-defense, the statute states both that it “does not apply”
to individuals who reasonably believe they must act to prevent
another’s use of unlawful force, see id. § 76-10-506(3), and that
self-defense is an exception to the outlined offense, see id.
§ 76-10-506(2) (stating that the offense is a class A misdemeanor
“[e]xcept as otherwise provided in 76-2-402”).
¶30 As we concluded in State v. Smith, 2005 UT 57, 122 P.3d 615,
exemptions from criminal statutes generally function as affirmative
defenses. Id. ¶ 19. In Smith, we stated that possession of a license or
permit was an affirmative defense to carrying a concealed firearm.
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Opinion of the Court
Id. We said: “Exemptions from laws, particularly when based on
possession of a license or permit . . . are typically construed as
affirmative defenses, partly because a defendant is in a better
position to prove he has a permit than is the State to prove that he
lacks such a permit.” Id.
¶31 Further, the defendant is better positioned to know if any
of the many possible exemptions even apply in his case. To construe
these provisions as elements would mean that the State would have
to disprove every exception to section 506—whether relevant in a
given case or not. Under Bess’s logic, in addition to the five elements
the district court recited, the State would have to prove that Bess is
also not (1) a United States marshal, nor (2) a federal official required
to carry a firearm, nor (3) a peace officer, nor (4) a law enforcement
official as defined and qualified in Utah Code section 53-5-711, nor
(5) a judge as defined and qualified in section 53-5-711, and that
(6) he was not acting in self-defense. And the State would have to do
this in every case in which it charged a violation of sections 506, 508,
or 508.1. One of the basic functions of affirmative defenses is to
narrow the issues to those that are relevant. See Thomas R. Lee,
Pleading and Proof: The Economics of Legal Burdens, 1997 BYU L. REV. 1,
6.
¶32 Utah Code section 76-1-501 is also instructive. It defines
“element of the offense” as “the conduct, attendant circumstances, or
results of conduct proscribed, prohibited, or forbidden in the definition
of the offense” along with “the culpable mental state required.”
UTAH CODE § 76-1-501(2) (emphasis added). Here, self-defense and
performance of duties are not part of the conduct that is “proscribed,
prohibited, or forbidden.” Rather, in outlining the exceptions to
section 506, the legislature provided guidance as to when it does and
does not apply. Bess essentially argues that the State must prove as
elements not only the conduct that is forbidden, to which the law
applies, but also the conduct or circumstances that are not forbidden,
to which the law does not apply. That is incorrect.
¶33 Because the plain language of the statute shows that
self-defense and performance of duties are exceptions to section 506,
we conclude the district court correctly determined that they were
affirmative defenses against the charged offense. Self-defense and
performance of duties function as affirmative defenses to the offense
of threatening with a dangerous weapon.
¶34 Importantly, this does not shift the burden of proof from
the State to the defendant. Rather, it means that sufficient evidence
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must be presented at trial to put the affirmative defense at issue. See
State v. Campos, 2013 UT App 213, ¶ 41, 309 P.3d 1160 (“[O]nce a
defendant—or even the prosecution for that matter—has produced
enough evidence to warrant the giving of an instruction on an
affirmative defense, the defendant is entitled to acquittal . . . unless
the prosecution carries its burden of disproving the defense beyond
a reasonable doubt.” (emphasis omitted)). At that point, the State
must disprove the defense beyond a reasonable doubt. See id.Accordingly, the district court did not err in waiting to instruct the
jury on these defenses until the final instructions, after Bess had
placed the defenses at issue.
II. JUROR DECLARATION
¶35 Bess next argues that the district court erred in excluding
the juror declaration he submitted with his motion for a new trial. In
particular, he argues that the court abused its discretion when it
elected not to consider the declaration because it was untimely.
Because we ultimately conclude that the district court would be
barred from considering the declaration under rule 606(b) of the
Utah Rules of Evidence, any error in excluding it due to untimeliness
is harmless. We therefore decline to address whether the court
abused its discretion in this regard and instead affirm on alternative
grounds. See Bailey v. Bayles, 2002 UT 58, ¶ 20, 52 P.3d 1158 (“[A]n
appellate court may affirm the judgment appealed from if it is
sustainable on any legal ground or theory apparent on the record.”).
¶36 Rule 606(b) prohibits, with a couple of exceptions, the
admission of a juror declaration pertaining to “any statement made
or incident that occurred during the jury’s deliberations; the effect of
anything on that juror’s or another juror’s vote; or any juror’s mental
processes concerning the verdict or indictment.” It prohibits
“virtually all inquiries into the jury deliberation process.” State v.
King, 2008 UT 54, ¶ 45, 190 P.3d 1283 (citation omitted) (internal
quotation marks omitted). These restrictions help to insulate the jury
and protect jurors from being harassed by defeated parties.
¶37 Bess argues that rule 606(b) should not limit the use of the
declaration because “Utah Rule of Evidence 606(b) was recently
declared unconstitutional as written.” In support, Bess refers to the
United States Supreme Court’s recent decision in Pena-Rodriguez v.
Colorado, 137 S. Ct. 855 (2017). But Bess misreads the holding of that
case. In Pena-Rodriguez, the Supreme Court determined that
Colorado’s rule 606(b) equivalent was unconstitutionally applied
11
STATE v. BESS
Opinion of the Court
when it precluded juror testimony regarding racial animus among
the jurors. Specifically, the Supreme Court said,
[W]here a juror makes a clear statement that indicates
he or she relied on racial stereotypes or animus to
convict a criminal defendant, the Sixth Amendment
requires that the no-impeachment rule give way in
order to permit the trial court to consider the evidence
of the juror’s statement and any resulting denial of the
jury trial guarantee.
Id. at 869.
¶38 We read Pena-Rodriguez to strike down Colorado’s
rule 606(b) only as applied to statements indicative of racial animus.
Beyond this narrow, as-applied holding, Pena-Rodriguez contains
language supporting the policy behind rule 606(b). According to the
Supreme Court, the no-impeachment rule “promotes full and
vigorous discussion” and it “gives stability and finality to verdicts.”
Id. at 865. We do not read Pena-Rodriguez to strike down Utah’s or
any other state’s 606(b) equivalent as facially unconstitutional.
¶39 Under rule 606(b), the declaration is an impermissible
encroachment into the jury’s deliberative process. The rule contains
two narrow exceptions, one of which Bess claims is relevant here.
Jurors are permitted to testify about whether “extraneous prejudicial
information was improperly brought to the jury’s attention” or “an
outside influence was improperly brought to bear on any juror.”
UTAH R. EVID. 606(b)(2). Bess contends that the contested declaration
falls under the extraneous prejudicial information exception. But that
is incorrect.
¶40 In particular, Bess argues that the declaration discloses that
two items of extraneous prejudicial information were brought to the
jury’s attention. According to the declaration, one juror, a “deputy,”
began educating the rest of the jurors about concealed weapons
permits. The juror stated that he “wouldn’t have handled the
situation like Bess handled it.” Another juror discussed his own
criminal conviction and stated that, in being held accountable, he
realized his mistake. The declaration quotes this juror as saying, “I
had to be held accountable for my actions, he needs to be held
accountable for his.” Bess argues that these statements were
“extraneous” because the information was not presented at trial.
¶41 But this is not extraneous information within the meaning
of rule 606(b). “[E]xtraneous prejudicial information ‘cover[s]
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misconduct such as jurors reading news reports about the case,
jurors communicating with third parties, bribes, and jury
tampering.’” State v. Maestas, 2012 UT 46, ¶ 114, 299 P.3d 892 (second
alteration in original) (citation omitted). It also “includes the jury’s
consideration of evidence not admitted in court, and instances where
a juror ‘conduct[ed] his own investigation and [brought] the results
into the jury room.’” Id. (alterations in original) (citations omitted). It
is not “evidence of discussions among jurors” or “instances where a
juror . . . brings his personal experiences to bear on the matter at
hand.” Id. (alteration in original) (citations omitted) (internal
quotation marks omitted). The statements that Bess seeks to admit
are best characterized as juror discussions about personal
experiences and opinions. The declaration does not contain
allegations of extraneous prejudicial information being brought to
the jury’s attention.
¶42 We conclude that the juror declaration is impermissible
under rule 606(b), and no exception applies to it. Accordingly, we
affirm the district court’s decision not to consider it on this
alternative ground.
III. DEADLOCK INSTRUCTION
¶43 Finally, Bess argues that the deadlock instruction provided
to the jury was unconstitutionally coercive. While Bess recognizes
that courts must typically speculate as to the coercive effect of a
deadlock instruction, he contends that we may avoid doing so here
by looking to the juror declaration that he submitted with his motion
for a new trial. We conclude that the declaration is inadmissible for
this purpose and that Bess has otherwise failed to demonstrate that
the deadlock instruction was coercive.
¶44 Utah courts have repeatedly upheld the use of deadlock
instructions as a permissible way “to guide the jury to a fair and
impartial verdict,” so long as the instruction is not coercive. See State
v. Ginter, 2013 UT App 92, ¶ 6, 300 P.3d 1278 (quoting State v. Lactod,
761 P.2d 23, 29–30 (Utah Ct. App. 1988) (internal quotation marks
omitted)). In determining the constitutionality of a particular
deadlock instruction, we consider (1) whether the language of the
instruction is per se coercive, and (2) whether it is coercive under the
circumstances presented in the case. See Lactod, 761 P.2d at 30–31.
¶45 Here, the jurors deliberated for approximately three hours
before notifying the court that they were deadlocked five votes to
one in favor of conviction. To encourage further deliberation, the
court recommended that it provide the jury with a deadlock
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Opinion of the Court
instruction patterned after Model Utah Jury Instruction CR218. Bess
objected and moved for a mistrial, which the court denied. When the
jurors returned, the court asked them “to keep working at this for a
time period” and stated that it would provide one final instruction.
The instruction read:
The verdict must represent the considered judgment of
each juror. In order to return a verdict, it is necessary
that each juror agree. Your verdict must be unanimous.
It is your duty to consult with one another and to
deliberate. Your goal should be to reach an agreement
. . . if you can do so without surrendering your
individual judgment. Each of you must decide the case
for yourself, but do so only after impartially
considering the evidence with your fellow jurors. Do
not hesitate to reexamine your own views and change
your position if you are convinced [it] is a mistake. But
do not surrender your honest conviction as to the
weight or effect of the evidence solely because of the
opinion of your fellow jurors, or just to return a verdict.
You are judges, judges of the facts. Your sole interest is
to determine the truth from the evidence of the case.
¶46 The jury continued deliberating for three more hours before
it issued a unanimous guilty verdict. When polled, each juror
confirmed that he or she agreed with the guilty verdict.
¶47 Bess concedes that the language of this deadlock
instruction is not per se coercive. Instead, he argues that the
instruction was coercive in light of the circumstances presented here.
Nevertheless, Bess does not engage in any meaningful analysis of the
circumstances surrounding the district court’s issuance of the
instruction. Rather, he asks us to rely on the juror declaration to
conclude that the instruction had a coercive effect. We decline to do
so.
¶48 As previously stated, under the Utah Rules of Evidence,
juror declarations are admissible to dispute the validity of a verdict
only where “extraneous prejudicial information was improperly
brought to the jury’s attention” or where “an outside influence was
improperly brought to bear on any juror.” UTAH R. EVID. 606(b).
Neither exception is applicable to decide whether a deadlock
instruction had a coercive effect. See United States v. Black, 843 F.2d
1456, 1464 n.7 (D.C. 1988) (providing that a verdict cannot be
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Cite as: 2019 UT 22Opinion of the Court
impeached by a juror’s affidavit stating that “the anti-deadlock
instructions were coercive”).
¶49 In relying solely on the inadmissible juror declaration to
support his contention that the deadlock instruction was
unconstitutionally coercive, Bess has failed to meet his burden of
persuasion on appeal. See State v. Nielsen, 2014 UT 10, ¶¶ 33–44, 326
P.3d 645 (stating that parties who fail to adequately brief their
arguments will likely fail to meet their burden of persuasion on
appeal). In particular, Bess has not provided reasoned analysis
supported by citations to the record to establish which
circumstances, if any, demonstrate that providing the deadlock
instruction was unconstitutionally coercive here. See UTAH R. APP. P.
24(a)(8). We therefore decline to further address this issue.
CONCLUSION
¶50 We conclude that under Utah Code section 76-10-506,
self-defense and acting as a peace officer in performance of duties
are both affirmative defenses, not elements of the offense. We also
conclude that the juror declaration submitted by Bess was
inadmissible under rule 606(b) of the Utah Rules of Evidence.
Finally, we determine that Bess failed to prove the district court’s
deadlock instruction was unconstitutionally coercive under the
circumstances presented in this case.
¶51 Accordingly, we affirm.
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