Utah Court of Appeals
Must Utah defendants cure jury selection errors with peremptory challenges? State v. Robertson Explained
Summary
Robertson was convicted of aggravated burglary after being found on a victim’s enclosed porch at night, having entered through a window. During his escape attempt, Robertson fought with the victim using what appeared to be a knife, though no knife was recovered. Robertson appealed his conviction on multiple grounds including jury selection errors and ineffective assistance of counsel.
Analysis
Background and Facts
Roy Don Robertson was convicted of aggravated burglary after Wayne King discovered him on his enclosed porch at approximately 1:00 A.M. King concluded Robertson had entered through a window, as the window was open and the screen removed. When confronted, Robertson fled while carrying a bag, leading to a physical altercation during which King’s face was cut by what appeared to be a knife. Police found an empty knife scabbard on Robertson’s belt but no knife. The State also presented testimony from the Kilcrease couple, who claimed to have seen someone matching Robertson’s description carrying a “pirate knife” the day before the burglary.
Key Legal Issues
Robertson raised three primary challenges on appeal: (1) the trial court’s denial of his for-cause challenges to two jurors, (2) ineffective assistance of counsel regarding jury selection and failure to request limiting instructions, and (3) insufficient evidence to support his conviction, specifically regarding intent to commit theft.
Court’s Analysis and Holding
The Utah Court of Appeals applied the “cure or waive” rule established in State v. Baker, holding that defendants must use peremptory challenges to remove contested jurors or waive appellate review of jury selection errors. Since Robertson failed to strike the challenged jurors with his peremptory challenges, he waived his right to appeal those issues. Regarding ineffective assistance, the court found no evidence that the contested jurors were biased as a matter of law, and counsel’s tactical decisions were within the range of professional competence. Finally, the court determined sufficient evidence existed to infer Robertson’s intent to commit theft based on his nighttime entry without permission and his subsequent conduct.
Practice Implications
This decision reinforces Utah’s strict application of the cure or waive rule, requiring defense counsel to strategically use peremptory strikes to preserve appellate issues. The ruling also demonstrates that ineffective assistance claims based on jury selection require showing actual bias as a matter of law, not merely potential bias. For sufficiency challenges, the court confirmed that intent can be inferred from circumstantial evidence, particularly in burglary cases involving nighttime entries without consent.
Case Details
Case Name
State v. Robertson
Citation
2005 UT App 419
Court
Utah Court of Appeals
Case Number
No. 20040327-CA
Date Decided
October 6, 2005
Outcome
Affirmed
Holding
A defendant waives challenges to juror bias when he fails to use peremptory strikes to remove contested jurors after the trial court denies for-cause challenges.
Standard of Review
Abuse of discretion for jury selection challenges; correctness for questions of law regarding motions to dismiss; legal matter for ineffective assistance of counsel claims
Practice Tip
Always use peremptory challenges to remove jurors whose for-cause challenges were denied by the trial court to preserve appellate review under Utah’s cure or waive rule.
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