State v. Granados

2019 UT App 158THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JOSEPH CRESCENCIO GRANADOS,
Appellant.
Opinion
No. 20180055-CA
Filed September 26, 2019
Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 161906242
Nathalie S. Skibine, Nick Falcone, and Sherry Valdez,
Attorneys for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
POHLMAN, Judge:
¶1 Joseph Crescencio Granados appeals his convictions
arising from events surrounding a shooting and a subsequent
police chase. A jury convicted Granados on all charges filed
against him based on those events. On appeal, Granados
challenges the sufficiency of the evidence supporting the
convictions specifically related to the shooting: attempted
murder, possession of a dangerous weapon by a restricted
person, and criminal mischief. In addition, during the trial the
district court disqualified one of the jurors (Juror 16) for
sleeping. Granados argues that the court violated rule 17(g) of
the Utah Rules of Criminal Procedure by replacing Juror 16, over
State v. Granados
counsel’s objection and without questioning her. We affirm,
concluding that the evidence was sufficient to support the jury’s
verdict related to the shooting and that the district court did not
violate rule 17(g) by disqualifying Juror 16 without first
questioning her.
BACKGROUND 1
The Shooting
¶2 One afternoon, as the victim (Victim) drove home from
work, he noticed a “maroon” Chevy Malibu (Malibu) ahead of
him “swerving all over the place.” From Victim’s vantage point,
he observed that the Malibu’s driver—an individual the jury
later determined to be Granados—was the only occupant of the
car. The Malibu eventually pulled into a right-turn lane, at which
point Victim “went to pass it.” As Victim did so, he observed the
Malibu’s driver touch the roof of the car and noticed that the
driver’s arm “had tattoos.” After Victim passed the Malibu, it
“jumped in right behind” Victim’s car and inexplicably began
“aggressively” following Victim, “right on [his] bumper.” Victim
did not recognize the Malibu and from his rearview mirror was
able to observe only that the car’s driver was “Hispanic.”
¶3 Concerned about being so aggressively followed and
wanting to “get somewhere where maybe [he] could get some
help,” Victim decided to drive to the home of a highway
patrolman he knew. As Victim turned left, Granados drew
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Reigelsperger, 2017 UT App 101,
¶ 2 n.1, 400 P.3d 1127 (cleaned up).
20180055-CA 2 2019 UT App 158State v. Granados
alongside him and “pulled a gun.” Victim “slammed [on] the
brakes,” backed up his vehicle, turned down another road, and
attempted to lose Granados. However, Granados “turned
around and started chasing” Victim, at which point Victim
called 911.
¶4 While Victim was on the phone, the Malibu hit Victim’s
car on the “right passenger side,” causing it to “sway, skid and
lose control,” hit a parked SUV, and land on the front lawn of a
townhome. After Victim’s vehicle “came to a stop on the lawn,”
Granados opened fire, shooting ten rounds at Victim. One of the
bullets grazed Victim’s neck. Granados then fled in the Malibu.
¶5 Several witnesses observed the shooting. One witness
(Witness One), a resident of the neighborhood, went outside
after hearing four consecutive gunshots. She observed a “red
car” down the street, “[r]ight in front of [the] townhomes,” and
then heard “maybe four or five more shots.” At that point, the
red car “made a U-turn” and went “right past” her. As it did,
Witness One saw that the car was “crushed in on the passenger’s
side at the front” and that it had a “white license plate” and a
“baby on board” “triangle” in the back window.
¶6 Another witness (Witness Two) was driving in the same
area at the time. She observed a “maroon” car hit Victim’s car,
which then landed on the grass “facing a townhome.” She then
observed the car’s driver pull a gun and shoot at Victim’s car.
While Witness Two did not see who was driving, she did
observe that the driver was the only person in the car.
¶7 Yet another witness (Witness Three) was also driving in
the area. Witness Three saw a “red car” with damage and
another car “up on the grass with the whole passenger side
caved in.” As she drove slowly past both cars, she made eye
contact with the red car’s driver and described him as having “a
round face,” “really dark eyes,” “short, really dark hair,” and “a
20180055-CA 3 2019 UT App 158State v. Granados
mustache.” Witness Three then saw the driver raise a gun and
start shooting at the car on the lawn, testifying that the driver
“[j]ust kept firing.” Witness Three continued to drive, but in her
rearview mirror observed the red car “flip a U-ey” in her
direction, veer around her, and run a red light. As it did, she
observed “a piece of his car fly off in the intersection.” Police
later recovered a headlight at that intersection. Witness Three
followed the red car and called 911. On a side street she then
witnessed the car’s driver stop, get out of the car, pick up the
front bumper that had fallen off, and put it in the car.
Fleeing the Police
¶8 Police were advised of the shooting incident at 4:13 p.m.,
almost as soon as it occurred, and immediately began a search
for the Malibu. Granados was apprehended and taken into
custody approximately two and a half hours later, at 6:55 p.m.
¶9 Notably, the day before the shooting, police were already
attempting to locate Granados and the Malibu. The Malibu
belonged to Granados’s girlfriend (Girlfriend), and she had
reported to police that the vehicle was missing and that
Granados likely had it. Girlfriend’s Malibu was maroon and had
a triangular yellow “baby-on-board” sticker in the back window.
Later that day, an officer (Officer One) saw the vehicle, pulled
“up on the side of it,” and confirmed that Granados was
“actually inside the vehicle,” observing that Granados was the
vehicle’s only occupant. When Officer One attempted to pull
Granados over, Granados fled and Officer One broke off pursuit.
¶10 On the day of the shooting, several police officers assisted
in apprehending Granados. An officer (Officer Two) spotted
Granados in the Malibu at approximately 6:15 p.m. He observed
that the Malibu had “front-end damage” and that Granados was
the vehicle’s sole occupant. Officer Two radioed other officers
20180055-CA 4 2019 UT App 158State v. Granados
about Granados’s location and followed him for several miles,
but eventually lost sight of him.
¶11 Upon receiving information that Officer Two had located
Granados, a different officer (Officer Three) proceeded to a
nearby location to create a containment of the area. As he did, he
saw the Malibu drive right by him and also identified Granados
as the driver. Along with other officers, Officer Three engaged in
pursuit, following Granados through surface streets and the
freeway for over twelve minutes, at times reaching speeds of
approximately 95 miles per hour.
¶12 Granados eventually abandoned the Malibu in the middle
of the road next to a “small apartment building” and fled on
foot, but he was apprehended and arrested shortly thereafter.
The Physical Evidence and Photo Array
¶13 Following Granados’s arrest, police searched the Malibu
that Granados had abandoned in the road following the
high-speed chase. The Malibu had a yellow baby-on-board sign
in the back window, and the license plate matched that of
Girlfriend’s car. The Malibu’s exterior also had extensive
damage. Among other things, the car was missing the front
bumper and a headlight, and the missing bumper was
discovered in the car’s back seat. Inside the car, officers also
discovered glass shards and, on the driver’s side floorboard, two
live rounds, .32 caliber and .40 caliber, and ten spent .40 caliber
casings.
¶14 Officers also recovered physical evidence from the
shooting scene. Crime scene technicians identified markings and
holes consistent with ten rounds—eight in Victim’s car, one
creating a trail on the sidewalk and lawn next to Victim’s car,
and one in the exterior of the townhome in front of Victim’s car.
Crime scene technicians ultimately recovered five slugs—four
20180055-CA 5 2019 UT App 158State v. Granados
from Victim’s car and one on the porch of the nearby townhome.
Each slug was consistent with a .40 caliber bullet. Crime scene
technicians also recovered glass shards that were consistent with
those discovered in the back seat of the Malibu.
¶15 Technicians conducted tests on certain evidence collected
from the Malibu. First, technicians processed the front bumper
for fingerprints. A partial palm print was recovered but did not
match Granados. A technician also collectively processed the
bullets and bullet casings for DNA, soaking each casing and
bullet individually in a buffer solution and then pouring the
buffer solution through a filter designed to “catch a cell where
the DNA is stored.” The technician poured the buffer solution
for each casing and bullet through the same filter. The filter was
then taken to a lab for analysis, and the analyst concluded that
Granados was the major contributor to the DNA collected by the
filter.
¶16 Additionally, two days after the events, police showed
Witness Three a photo array that included Granados. Witness
Three did not select Granados as the person she observed in the
shooting, but she indicated that the photo she selected
“resemble[d]” the driver and that she was not positive that it
was driver of the red car. Nevertheless, the photo she selected fit
the description she provided to police.
The Trial
¶17 The State charged Granados with, among other things,
attempted murder, possession of a firearm by a restricted
person, failure to stop at the command of police, and criminal
mischief. 2 The case proceeded to trial. At the close of the State’s
2. In a search incident to arrest, officers also discovered
methamphetamine in Granados’s sock and drug paraphernalia
(continued…)
20180055-CA 6 2019 UT App 158State v. Granados
case, Granados moved for a directed verdict on the charges
related to the shooting incident. He argued that while there was
sufficient evidence that he drove the Malibu during the police
chase following the shooting incident, the State had not
provided sufficient evidence to establish his identity as the
shooter. The district court denied the motion, explaining that
there had been “quite substantial evidence” from which the jury
could infer that Granados “is the one that fired the shots.” The
court referenced the witness testimony describing both the
individual and the car involved in the shooting incident. The
court also referenced the various officers’ testimonies identifying
Granados as the driver of the Malibu both the day before the
shooting incident and within two hours of it, who at that time
led the officers on “quite an extraordinary chase.”
¶18 During the trial, the district court also dismissed Juror 16
as disqualified and replaced her with an alternate juror. During
Officer Three’s testimony on the second day of trial, the court
called for a break. After the jury was excused, the court
explained to counsel that it had done so because Juror 16 “keeps
falling asleep.” The court stated that it had observed Juror 16
falling asleep the day before, which had also prompted it to take
“some breaks,” stating its concern that the juror was “noticeably
falling asleep” in the middle of a presentation that “usually
would take someone’s attention.” Although the court initially
stated that it “just wanted to bring [counsel’s] attention” to the
issue and that it would “keep trying to watch,” after the break
(…continued)
in his pocket. The State charged him with possession of a
controlled substance and possession of drug paraphernalia, and
he was found guilty on both counts. Granados does not
challenge the sufficiency of the State’s evidence for those
convictions.
20180055-CA 7 2019 UT App 158State v. Granados
the court stated that, after thinking about it more and receiving
input from its staff, it had decided to dismiss Juror 16.
¶19 Defense counsel objected. He stated that he had not
observed Juror 16 sleeping and that he had seen her taking notes
and “trying to pay attention.” He also suggested that the portion
of testimony during which she fell asleep was not “crucial” and
that the defense had “strategically selected her” to be on the jury.
Defense counsel then requested that the court admonish the
juror or question her about her perception of what she had
missed before dismissing her.
¶20 The court declined defense counsel’s request and
dismissed Juror 16 without questioning her. The court explained
that it, along with both of its assistants, had observed Juror 16
“repeatedly” nod off “during significant parts of the trial” over
the two days and that it “was concerned about going any further
because of what she was clearly missing.” While the court
agreed that Juror 16 was trying to be diligent, it explained that
the falling asleep “got to . . . such a point” that it could not
“allow her to go forward.” And responding specifically to
defense counsel’s request for questioning, the court explained
that asking Juror 16 about “whether she knows that she missed it
or not” was not necessary where both the court and its staff
actually “observed her missing significant parts of the trial.” The
court stated that “it wasn’t going to be very persuasive . . . if she
was aware that she missed, because she clearly missed it and
because she was asleep.”
¶21 The jury convicted Granados on all counts. 3 Granados
timely appeals.
3. For the possession of a dangerous weapon by a restricted
person charge, the jury was asked to indicate whether Granados
(continued…)
20180055-CA 8 2019 UT App 158State v. Granados
ANALYSIS
¶22 Granados raises two challenges to his convictions. First,
he argues that the evidence of identity was insufficient to sustain
the convictions related to the shooting—attempted murder,
criminal mischief, and possession of a dangerous weapon by a
restricted person. Second, he argues that the district court
exceeded its discretion by dismissing Juror 16 for falling asleep
during the trial without questioning her before doing so.
I. Sufficiency of the Evidence
¶23 Granados argues that the evidence presented at trial was
insufficient to establish that he was the shooter. He contends that
the circumstantial evidence related to his identity raised “only a
speculative possibility” of his guilt in the crimes surrounding the
shooting. On that basis, he argues that the convictions related to
those crimes should be vacated.
¶24 “On a sufficiency of the evidence claim we give
substantial deference to the jury,” reviewing “the evidence and
all inferences which may reasonably be drawn from it in the
light most favorable to the verdict.” State v. Ashcraft, 2015 UT 5,
¶ 18, 349 P.3d 664 (cleaned up). “We will reverse a guilty verdict
(…continued)
“knowingly used a dangerous weapon” in the commission of the
attempted murder only if the jury had first found Granados
guilty of attempted murder. After finding Granados guilty of
attempted murder, the jury determined that he had knowingly
used a dangerous weapon. A separate bench trial was then held
on whether Granados was a restricted person for purposes of the
charge. The court determined that he was and so found him
guilty of that charge. On appeal, Granados’s challenge to this
conviction is limited to whether he was the shooter.
20180055-CA 9 2019 UT App 158State v. Granados
only when the evidence . . . is sufficiently inconclusive or
inherently improbable that reasonable minds must have
entertained a reasonable doubt that the defendant committed the
crime of which he or she was convicted.” State v. MacNeill, 2017
UT App 48, ¶ 51, 397 P.3d 626 (cleaned up). In this respect, “[a]s
long as there is some evidence from which all the necessary
elements of the charged offenses can be proved, there is
sufficient evidence to find the defendant guilty beyond a
reasonable doubt.” State v. Johnson, 2015 UT App 312, ¶ 11, 365
P.3d 730; see also State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183(reviewing the denial of a directed verdict and stating that “we
will uphold the trial court’s decision if, upon reviewing the
evidence and all inferences that can be reasonably drawn from it,
we conclude that some evidence exists from which a reasonable
jury could find that the elements of the crime had been proven
beyond a reasonable doubt” (cleaned up)).
¶25 Granados challenges the sufficiency of the evidence
establishing the element of his identity as the shooter. 4
Identification of the defendant “as the person who perpetrated
the crime charged” is an “essential element” that must be proven
beyond a reasonable doubt. State v. Cowlishaw, 2017 UT App 181,
¶ 13, 405 P.3d 885 (cleaned up).
¶26 As Granados acknowledges, identity may be proven by
circumstantial evidence. State v. Isom, 2015 UT App 160, ¶ 23 n.2,
354 P.3d 791; see also State v. Harris, 2015 UT App 282, ¶ 9, 363
P.3d 555 (stating that “it is a well-settled rule that circumstantial
evidence alone may be sufficient to establish the guilt of the
accused” (cleaned up)). Convictions based on circumstantial
4. We therefore assume for purposes of this appeal that there
was sufficient evidence to support every other element of the
crimes related to the shooting for which he was convicted, and
we do not address the other elements.
20180055-CA 10 2019 UT App 158State v. Granados
evidence are reviewed to determine whether there is “any
evidence” to support the challenged elements and whether the
inferences of guilt drawn from that evidence are reasonable.
MacNeill, 2017 UT App 48, ¶ 56 (cleaned up). “A reasonable
inference is a conclusion that can be drawn from the evidence
and is based on logic and reasonable human experience.” Harris,
2015 UT App 282, ¶ 9 (cleaned up); see also Salt Lake City v.
Carrera, 2015 UT 73, ¶ 12, 358 P.3d 1067 (stating that an inference
is reasonable and non-speculative if “there is an evidentiary
foundation to draw and support the conclusion”). In this respect,
an inference is reasonable “unless it falls to a level of
inconsistency or incredibility that no reasonable jury could
accept.” Ashcraft, 2015 UT 5, ¶ 18 (cleaned up).
¶27 Granados challenges the sufficiency of the circumstantial
evidence establishing his identity as the shooter by pointing to
specific pieces of evidence and advancing what he claims are the
“stronger” and “more consistent” inferences to be drawn from
those pieces of evidence. For example, Granados points to his
flight from police following the shooting, contending that
because he had also fled from police the day before, “the jury
could not infer that Granados was guilty of the shooting.”
Likewise, he contends that the more reasonable inference to be
drawn from the DNA evidence obtained from the bullets and
shell casings discovered in the Malibu was that his DNA came
from the live shells, not from the casings, and that his DNA was
present through transfer, not direct touch. He also points to the
non-matching palm print recovered from the bumper, Witness
Three’s failure to select him from the photo array, and his
apparent lack of connection to Victim as more reasonably
pointing to innocence.
¶28 However, our role in reviewing sufficiency claims is not
to second-guess the inferences adopted by the jury to determine
whether “some other (innocent) inference might have been
reasonable” from the evidence. Id. ¶¶ 22–27. We are tasked with
20180055-CA 11 2019 UT App 158State v. Granados
simply determining “whether the inference adopted by the jury
was sustainable.” Id. After all, the jury, not the appellate court, is
the “exclusive judge of both the credibility of witnesses and the
weight to be given particular evidence.” State v. Cegers, 2019 UT
App 54, ¶ 41, 440 P.3d 924 (cleaned up). And a jury is not
“obligated to believe the evidence most favorable to [the]
defendant,” nor does the “existence of contradictory evidence or
of conflicting inferences . . . warrant disturbing the jury’s
verdict” on appeal. State v. Howell, 649 P.2d 91, 97 (Utah 1982);
see also Johnson, 2015 UT App 312, ¶¶ 10–12; State v. Buck, 2009
UT App 2, ¶ 14, 200 P.3d 674 (stating that “it is perfectly
appropriate for a jury to reject a reasonable alternative
hypothesis presented by the defense, and to convict the
defendant,” and that presentation of such an alternative
hypothesis is “not enough” to merit reversal on appeal).
¶29 Moreover, even if certain pieces of evidence might not, on
their own, provide a reasonable basis for inferring identity, or
perhaps could carry an innocent explanation, our review is
limited to “whether the jury’s verdict is reasonable in light of all
of the evidence taken cumulatively, under a standard of review that
yields deference to all reasonable inferences supporting the
jury’s verdict.” Ashcraft, 2015 UT 5, ¶¶ 22, 24 (emphasis added).
As we observed in MacNeill, guilt may be proven beyond a
reasonable doubt by “a mosaic of circumstantial evidence . . .
considered as a whole.” 2017 UT App 48, ¶ 57 (cleaned up). We
affirm under these well-settled standards.
¶30 Here, the evidence in its totality provided the jury a
sufficient basis from which to infer beyond a reasonable doubt
that Granados was the shooter. To begin with, there is
substantial evidence suggesting that the car involved in the
shooting was the same car involved in the high-speed police
chase. Witnesses testified that the car involved in the shooting
was red or maroon with a baby-on-board sign in the back; that
the car sustained front-end damage from hitting Victim’s car;
20180055-CA 12 2019 UT App 158State v. Granados
that the car lost a headlight upon fleeing the scene; and that the
car’s front bumper fell off after the shooting and the driver
placed it in the car. In comparison, the car Granados was spotted
in two hours later, and which he subsequently abandoned in the
middle of the road following the high-speed chase, was red or
maroon with a triangular baby-on-board sign in the rear
window, front-end damage, a missing headlight, and a front
bumper sitting in the back seat.
¶31 There is also some evidence from which the jury could
have reasonably inferred that Granados was the shooter. There
was evidence that the Malibu recovered after the high-speed
chase was Girlfriend’s car. Before the shooting, Girlfriend had
informed police that her Malibu was missing and that Granados
likely had it, and the license plate number and description of
Girlfriend’s car matched that of the vehicle involved in the high-
speed chase. To that end, the day before the shooting, Granados
was positively identified by police as driving the Malibu. And
within two hours of the shooting, multiple officers positively
identified Granados driving the Malibu in a neighboring city.
¶32 In addition, as the district court recognized, Granados fit
the description of the shooter provided by Victim and an
eyewitness—a Hispanic male with a round face; short, dark hair
and dark eyes; a tattooed arm; and what appeared to be a
mustache. Witnesses also stated that the shooter was the only
occupant of the vehicle. Further, the jury heard evidence that
Granados’s DNA was recovered from the spent casings and
rounds discovered on the floor of the car; the analyst testified
that Granados was the major contributor to the DNA recovered
from the casings and rounds.
¶33 Finally, the jury heard evidence about the circumstances
of the high-speed police chase following the shooting. Within
approximately two hours of the shooting, Granados led police
on a high-speed chase through neighborhoods and the freeway,
20180055-CA 13 2019 UT App 158State v. Granados
reaching speeds of 95 miles per hour, before abandoning the
Malibu in the middle of the road and attempting to elude the
officers on foot. See State v. Franklin, 735 P.2d 34, 39 (Utah 1987)
(“We have previously ruled that evidence of flight is
probative.”), overruled on other grounds by State v. Robertson, 2017
UT 27, 438 P.3d 491; State v. Escobar-Florez, 2019 UT App 135,
¶ 54 (recognizing that “evidence of flight is probative because it
can demonstrate consciousness of guilt” (cleaned up)).
¶34 Considered in its totality, this evidence is a “mosaic of
circumstantial evidence that considered as a whole” was
sufficient to allow the jury to reasonably infer that Granados was
the shooter. See MacNeill, 2017 UT App 48, ¶ 57 (cleaned up); see
also Ashcraft, 2015 UT 5, ¶¶ 22–30 (explaining that evidence in a
sufficiency challenge is reviewed “cumulatively” and assessed in
its totality). The evidence places Granados in the same vehicle
involved in the shooting both the day before and within two
hours of the incident, and provides a reasonable basis to connect
Granados to the shooting itself.
¶35 To be sure, each individual piece of evidence Granados
identifies perhaps could have suggested a finding of innocence
or might not have been enough on its own to sustain reasonable
inferences about Granados’s involvement in the shooting. But on
a sufficiency challenge, we cannot reverse based on conflicts
surrounding individual pieces of evidence or because the jury
perhaps could have drawn inferences supporting Granados’s
innocence. See Ashcraft, 2015 UT 5, ¶¶ 22–30. And indeed, the
jury was presented with evidence that may have supported a
different verdict. For example, the jury heard testimony that the
palm print recovered from the front bumper of the Malibu was
not a match to Granados. Likewise, through cross-examination
Granados challenged the overall reliability of the DNA evidence.
And the jury was presented evidence that Witness Three failed
to identify Granados in the photo array. But these (and other)
conflicts in the evidence were the jury’s to weigh and resolve,
20180055-CA 14 2019 UT App 158State v. Granados
and that the jury ultimately resolved them in favor of guilt rather
than innocence is not enough, on its own, to merit reversal on
appeal. See id.; Johnson, 2015 UT App 312, ¶¶ 10–11.
¶36 In short, there is sufficient evidence to support
Granados’s convictions related to the shooting—attempted
murder, criminal mischief, and possession of a firearm by a
restricted person—and our inquiry is at an end. See Ashcraft,
2015 UT 5, ¶¶ 22–30; see also State v. Lucero, 2012 UT App 202,
¶ 2, 283 P.3d 967 (explaining in the context of a sufficiency claim
that the appellate court’s “inquiry ends when there is some
evidence, including reasonable inferences, from which findings
of all the requisite elements of the crime can reasonably be
made” (cleaned up)).
II. Sleeping Juror
¶37 Granados next argues that the district court violated rule
17(g) of the Utah Rules of Criminal Procedure when it
determined that Juror 16 was disqualified and dismissed her,
replacing her with an alternate juror. Rule 17(g) provides that
“[i]f a juror becomes ill, disabled or disqualified during trial and
an alternate juror has been selected, the case shall proceed using
the alternate juror.” Utah R. Crim. P. 17(g). Here, the court
disqualified Juror 16 for sleeping during significant portions of
the trial over a two-day period, and on that basis dismissed her.
¶38 Jurors may be disqualified for falling asleep during trial.
See State v. Marquina, 2018 UT App 219, ¶¶ 29–33, 437 P.3d 628(addressing a claim that the district court was required to
conduct voir dire of an allegedly sleeping juror to determine
whether the juror had missed important testimony), cert. granted,
440 P.3d 691 (Utah 2019); see also United States v. Freitag, 230 F.3d
1019, 1023–24 (7th Cir. 2000) (explaining that if “sleep by a juror
makes it impossible for that juror to perform his or her duties or
would otherwise deny the defendant a fair trial, the sleeping
20180055-CA 15 2019 UT App 158State v. Granados
juror should be removed from the jury”); United States v.
Cameron, 464 F.2d 333, 335 (3d Cir. 1972) (per curiam) (stating
that “a juror who cannot remain awake during much of the trial
is unable to perform his duty” and that the court did not exceed
its discretion in removing the juror in such circumstances).
Granados nevertheless argues that the court erred because it
“could not determine, without first questioning the juror, that
the juror was sleeping to the point of disqualification from
service.” We must therefore determine whether the court
violated rule 17(g) by making its disqualification determination
without first questioning the juror.
¶39 We discern no violation of the rule in the district court’s
disqualification of Juror 16. There is no hard-and-fast rule
governing how a district court must deal with sleeping jurors.
Rather, our cases establish that in dealing with sleeping jurors,
district courts have considerable discretion in determining how
best to resolve the issue. See Marquina, 2018 UT App 219, ¶ 29
(“In the handful of Utah appellate cases discussing a sleeping
juror’s effect on a trial, one principle predominates: discretion.”);
see also State v. Lesley, 672 P.2d 79, 82 (Utah 1983) (concluding
that the trial court did not exceed its discretion in denying a
motion for a new trial based on one juror’s apparent drowsiness,
and stating that “[t]he trial judge was in a position to gauge the
degree, if any, of the juror’s incapacity to serve in the trial”).
Indeed, as this court recently explained in Marquina, there is no
“template trial courts must follow whenever they are confronted
with reports of a sleepy juror.” 2018 UT App 219, ¶ 31.
¶40 Here, we conclude that the district court did not exceed
its considerable discretion when it decided to disqualify and
dismiss Juror 16 for sleeping without first questioning her. Both
the court and its staff observed Juror 16 over a two-day period
repeatedly fall asleep and miss significant portions of the trial.
Over those two days, the court had also attempted to allay the
20180055-CA 16 2019 UT App 158State v. Granados
problem by calling for breaks, explaining to counsel that it had
taken recesses during the trial specifically because of Juror 16.
¶41 And as the court explained, questioning Juror 16 about
her perception of sleeping or what she believed she had missed
was not necessary for its disqualification determination because,
based on its own observations, it was “obvious” and “clear” that
she had been sleeping and had “missed a significant amount.”
See id. ¶¶ 29–33 (emphasizing the district court’s discretion in
handling sleeping jurors); State v. Mellor, 272 P. 635, 639 (Utah
1928) (same); see also Freitag, 230 F.3d at 1023–24 (no abuse of
discretion for the district court not to inquire further into the
allegedly sleeping juror issue, particularly where the court “had
not noticed an extensive sleeping problem”); United States v.
Holder, 652 F.2d 449, 451 (5th Cir. 1981) (no abuse of discretion
under federal rule of criminal procedure addressing
disqualification of jurors for failing to question a juror who
allegedly fell asleep where the court had observed the juror itself
and had concluded that the juror was not asleep). In these
circumstances, we cannot say that the court’s refusal to question
Juror 16 about the sleeping incidents or what she felt or believed
she had missed before disqualifying her exceeded its discretion.
¶42 Accordingly, the district court did not violate rule 17(g)
when it disqualified Juror 16 without first questioning her about
the sleeping incidents.
CONCLUSION
¶43 We conclude that there was sufficient evidence presented
to permit the jury to reasonably infer that Granados was
involved in the shooting. We also conclude that the district
court’s disqualification of Juror 16 did not violate our rules of
criminal procedure. We therefore affirm Granados’s convictions.
20180055-CA 17 2019 UT App 158