Background
Joseph Manuel Perez lived above neighbors in an Ogden apartment complex. After a gathering at which Perez became intoxicated and aggressive, Girlfriend took away his gun magazine and asked him to leave. Perez departed but returned five minutes later, kicked the door off its hinges, and pointed what appeared to be a black pistol at Girlfriend and her sister. A neighbor tackled and disarmed Perez; the weapon was a BB gun. Police later recovered a real firearm from Perez’s backpack. A jury convicted Perez of aggravated burglary, one count of aggravated assault, and destruction of property; he was acquitted on a second aggravated assault count.
On appeal, Perez raised two claims. First, he argued that his trial counsel (Counsel) was constitutionally ineffective in failing to seek for-cause removal of three jurors who had raised their hands during voir dire. Counsel had asked the venire whether any of them had even “an inkling” that Perez “must’ve done something wrong to be sitting here”; Juror 11 and Juror 12 raised their hands. Counsel then asked whether jurors felt it would have changed their thinking “if I had heard from the accused”; Juror 3 and Juror 11 raised their hands. The prosecutor then followed up, explaining that the court would instruct the jury it could not use the fact of the charges in deliberations, and asked whether any juror could not follow that instruction. No hands were raised. Counsel did not challenge any of the three jurors for cause, and all three sat on the jury that convicted Perez.
Second, Perez argued that the district court failed to resolve an alleged inaccuracy in the presentence investigation report (PSI)—specifically, a statement that Perez had “declined to submit the presentence report questionnaire.” At sentencing, Perez told the court he had filled out and mailed the questionnaire from jail, suggesting it had gone missing. The court discussed the issue at length, denied a continuance, and sentenced Perez based on the severity of the offense and his criminal history, expressly noting that it did not “live and die by” AP&P’s recommendations.
The Court’s Holding
The Utah Court of Appeals (Judge Orme, joined by Judges Christiansen Forster and Oliver) affirmed Perez’s convictions and sentence on both grounds.
On the jury selection IAC claim, the court applied the framework from State v. Litherland, 2000 UT 76, 12 P.3d 92. Under Litherland, a trial attorney’s decision not to challenge a juror is presumed to be a conscious, strategic choice, and that choice is further presumed to constitute effective representation. A defendant can rebut the presumption by showing (1) that counsel was so inattentive or indifferent that the decision to retain the juror was not the product of a conscious choice; (2) that the juror expressed bias so strong and unequivocal that no plausible countervailing strategic preference could justify keeping them; or (3) some other specific evidence that the choice was not plausibly justifiable. Perez failed on all three grounds.
Counsel was not inattentive: she raised concerns about a different juror who allegedly made gestures toward Perez, moved to strike the entire venire, and questioned yet another juror about prior assault victimization—all demonstrating active, attentive participation in jury selection. The three jurors’ expressions of potential bias were not unequivocal: they simply raised their hands in response to Counsel’s questions, then said nothing when the prosecutor asked whether they could follow the court’s instructions. “Sequence matters here.” After the prosecutor’s clarifying questions, the jurors effectively affirmed their ability to be impartial. The court noted that, for all it could tell from a cold transcript, those jurors “may” have been “the most attentive juror[s], or the only one[s] who glanced disparagingly at the prosecution or sympathetically toward the defendant.” Litherland, 2000 UT 76, ¶ 24. Moreover, the jury’s acquittal on one of the aggravated assault counts demonstrated that the panel deliberated carefully rather than convicting reflexively.
On the PSI issue, the court inferred from the record that the district court had implicitly found the contested statement not inaccurate—an inference supported by the court’s detailed discussion at sentencing. Even accepting an inaccuracy, Perez did not argue and could not show that the outcome would have been different: the court expressly declined to rely heavily on AP&P’s recommendations and grounded its sentence in the offense’s severity and Perez’s criminal history.
Key Takeaways
- Under Litherland, a trial attorney’s decision not to challenge a juror who raised a hand in response to defense counsel’s leading voir dire questions is presumed strategic and presumed effective—especially where that juror subsequently affirmed, in response to the prosecutor’s follow-up, an ability to follow the court’s instructions.
- Sequence in voir dire matters: a juror’s tentative initial expression of potential bias, followed by silence when asked whether they cannot be impartial, weighs against a finding of unequivocal bias sufficient to require for-cause removal.
- Counsel’s active participation in other aspects of jury selection—challenging different jurors, raising pool-level concerns—defeats a claim that the failure to challenge any specific juror was a product of inattentiveness rather than strategy.
- A sentencing court need not make explicit written findings about a PSI’s accuracy unless it actually finds an inaccuracy; and even then, remand is unavailing unless the defendant shows a different sentencing outcome would have resulted.
Why It Matters
Perez reinforces the strong presumption of strategic competence that Utah appellate courts apply to defense counsel’s jury selection decisions. The case is a useful benchmark for practitioners: a juror who raised a hand to a defense counsel’s leading question, then gave no indication of continued bias in response to the prosecutor’s curative follow-up, will not typically ground a successful IAC claim on appeal. Counsel who want to preserve a jury selection IAC claim must make a contemporaneous record showing that the juror’s bias persisted after curative questioning—not merely that the juror responded to an initial biased-framing question.
The decision also illustrates the limits of PSI-accuracy challenges at sentencing. Where the district court expressly discounts AP&P’s recommendations and bases its sentence on the facts of the offense and the defendant’s history, an incomplete or inaccurate PSI is unlikely to generate reversible error—even if the defendant disputes the report’s characterization of his conduct before trial.