State v. Courtney

2017 UT App 62

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
CARL MACK COURTNEY,
Appellant.

Opinion
No. 20141172-CA
Filed April 6, 2017

Second District Court, Ogden Department
The Honorable Michael D. DiReda
No. 121901670

Emily Adams, Attorney for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES GREGORY K. ORME and KATE A. TOOMEY concurred.

CHRISTIANSEN, Judge:

¶1 Defendant Carl Mack Courtney appeals from his
conviction for distribution of or arranging to distribute a
controlled substance, a second degree felony. See Utah Code
Ann. § 58-37-8(1)(a)(ii) (LexisNexis 2012). Specifically, Defendant
argues that he received ineffective assistance of counsel when his
trial counsel failed to timely move for a mistrial after a potential
juror allegedly tainted the prospective juror pool. We reverse the
trial court’s denial of the mistrial motion, vacate Defendant’s
conviction, and remand the case for further proceedings.

¶2 Defendant was charged with a drug-related crime. During
jury selection, defense counsel asked the prospective jurors
whether any of them knew himself or Defendant. One
State v. Courtney

prospective juror (Juror Five) responded affirmatively and
offered additional unsolicited information:

[Defense counsel]: Does anybody know myself or
Mr. Courtney?

[Juror Five]: Due to my years in law enforcement,
yes. I have had affiliations with him, especially
during the time that I was serving as an agent for
the Weber-Morgan Narcotics Strike Force.

¶3 The court’s questioning of the venire continued without
further attention being drawn to this exchange. A few minutes
later, however, the court asked the jury, ‚Would any of you have
difficulty in affording the defendant his guarantee of being
considered innocent until proven guilty beyond a reasonable
doubt or, stated differently, would any of you believe that
because the defendant has been charged in this case by the State
that there must be some basis for his guilt?‛ Juror Five raised her
hand, but before she could speak, the court cut her off and asked
both counsel to approach the bench for a discussion out of the
potential jurors’ hearing. At the bench discussion, the court and
both counsel discussed Juror Five’s first response:

THE COURT: We dodged a bullet the first time.

[Defense counsel]: No, we didn’t. We—

THE COURT: Well I mean I guess what I’m saying
is we didn’t dwell on it. We didn’t linger on it. I
recognize what you’re saying, but the problem is
there’s no way to anticipate that she would say
what she said. . . .

....

THE COURT: Well I don’t think there’s any
question that she is gone. I guess the bigger issue

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though is I don’t want her tainting the [juror] pool
and if we have an issue now where you already
feel that she has done that, then we need to make a
record on it because I don’t want to plow through,
pick a jury of eight and then have this become an
issue. I mean I guess I don’t know how we’re going
to determine whether she has tainted the pool or
not.

¶4 The court and both counsel eventually agreed to excuse
Juror Five immediately and to highlight another reason for
doing so, in hopes of minimizing the taint. In front of the entire
prospective juror pool, and before Juror Five could explain why
she had raised her hand, the court excused her on the basis of a
potential conflict:

THE COURT: The discussion that we had at the
bench was based on the fact that your husband
comes to my court every Thursday as a probation
officer[.] I think it would be better to just excuse
you at this time. . . . So rather than have you stay
here only to excuse you at the end, I think what
we’ll do is just let you get on your way now[.]

¶5 After Juror Five was excused, a jury of eight jurors was
selected from the remaining prospective juror pool and sworn in.
Immediately afterward, and outside the presence of the jury, the
court and both counsel again discussed Juror Five’s statements.
Defense counsel noted Juror Five had ‚set up controlled buys
when she was a Weber-Morgan Strike Force Agent‛ and that her
‚comments to that end here today‛ included a reference to
‚knowing my client in that capacity in front of all the jurors.‛
Defense counsel also stated that he had been looking at ‚other
jurors’ faces as she was making [her] comments and there were a
couple of jurors that kind of you know [perked] up when they
were listening to what she was saying.‛ Defense counsel
described the effect as ‚possible jury tainting.‛ And defense

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counsel further noted that, ‚when the Court asked can anybody
here not afford [Defendant] the right of innocence until proven
guilty,‛ Juror Five had ‚popped back up‛ and was ‚the only
person that raised her hand to that question.‛ Defense counsel
agreed that ‚the Court did the best the Court could to quash the
issue when it arose, but I mean up to that point there’s possible
bias already and maybe tainting of the jury pool at that time.‛

¶6 The court asked why an objection or motion for mistrial
‚was never brought or even alluded to‛ at the bench discussion.
Defense counsel replied that ‚there was never a break again,‛
that ‚the jury was in the room the whole time,‛ and that he had
not ‚had a chance to talk to my client about his concerns about
it.‛ Defense counsel admitted that he had not made a motion for
mistrial and that he had ‚missed the Court swearing the jury‛
because he ‚was re-organizing and shifting sides and wasn’t
paying attention.‛ The court expressed frustration with counsel’s
failure to move for a mistrial, noting that ‚*t+he minute the
response was made we could have excused the panel and [trial
counsel] could have made that motion right at that moment.‛
The court then asked defense counsel whether he was moving
for a mistrial but defense counsel declined to answer
immediately because he wanted to consult with Defendant. The
court granted a recess for defense counsel to do so.

¶7 After the recess, and still outside the presence of the jury,
the discussion continued. The court noted, ‚Here we have what I
perceive as a pretty significant situation,‛ and stated, ‚I don’t
know how to cure it at this point and maybe we can’t*.+‛ The
court was also worried about an appeal should Defendant be
convicted: ‚I just don’t want to try this again in a year or two
years because [the appellate courts] send it back on an ineffective
assistance *of counsel claim.+‛ Nevertheless, the court indicated
that if defense counsel moved for a mistrial, ‚the likelihood that
I’m going to grant it is very slim mostly because of
untimeliness.‛

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¶8 Both the court and the prosecutor expressed concern that,
because the jury had been sworn, jeopardy had attached.
Consequently, they speculated as to whether Defendant could
‚waive double jeopardy.‛1 The court then asked whether
defense counsel wanted to move for a mistrial, defense counsel
made the motion, and the trial court denied it as untimely. The
jury was then called into the courtroom, and the trial proceeded,
ultimately resulting in Defendant’s conviction. Defendant timely
appealed.

¶9 On appeal, and represented by new counsel, Defendant
contends that he received constitutionally ineffective assistance
from his defense counsel when counsel failed to make a timely
motion for mistrial.2 When a claim of ineffective assistance of
counsel is raised for the first time on appeal, there is no lower
court ruling to review; consequently, we must decide whether
the defendant was deprived of the effective assistance of counsel
as a matter of law. Layton City v. Carr, 2014 UT App 227, ¶ 6, 336
P.3d 587. ‚To succeed on a claim of ineffective assistance of
counsel, a defendant must show that trial counsel’s performance
was deficient and that the defendant was prejudiced thereby.‛
State v. Hards, 2015 UT App 42, ¶ 18, 345 P.3d 769 (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). But see infra
¶ 15 note 5.

1. Granting a defendant’s unforced motion for mistrial does not
implicate double jeopardy. See, e.g., United States v. Scott, 437 U.S.
82, 93 (1978) (‚Where . . . a defendant successfully seeks to avoid
his trial prior to its conclusion by a motion for mistrial, the
Double Jeopardy Clause is not offended by a second
prosecution.‛ (Emphasis in original)).

2. Defendant does not argue that the trial court’s determination
that the mistrial motion was untimely amounted to an abuse of
discretion. Under these circumstances, such an argument might
be well taken.

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¶10 Defendant argues that his counsel’s performance was
deficient due to the failure to guarantee the empanelment of an
impartial jury by appropriately and timely objecting to a tainted
jury. ‚Among the most essential responsibilities of defense
counsel is to protect *his or her+ client’s constitutional right to a
fair and impartial jury by using voir dire to identify and ferret
out jurors who are biased against the defense.‛ Miller v. Francis,
269 F.3d 609, 615 (6th Cir. 2001). Defendant asserts that, to fulfill
this responsibility, counsel should have moved for a mistrial
before the jury was sworn.

¶11 Generally, if counsel knows or believes that a juror or jury
should be disqualified due to bias or prejudice, the correct time
to raise an objection is before the jury is sworn. Burton v. Zions
Cooperative Mercantile Inst., 249 P.2d 514, 516 (Utah 1952). This is
because the range of remedies short of a mistrial may be reduced
after the jury has been sworn and jeopardy attaches. See State v.
Johnson, 2013 UT App 276, ¶ 8, 316 P.3d 994 (holding untimely a
challenge based on counsel’s failure to object to the continuance
of trial, because the timeliness requirement ‚prevents defendants
from sandbagging the prosecution by waiting until the only
available remedy for the alleged error is outright dismissal or a
new trial‛ (citation and internal quotation marks omitted)).
Defendant notes that defense counsel had ‚multiple
opportunities to move for a mistrial before the jury was sworn
but failed to do so.‛

¶12 The State responds that ‚counsel properly chose to
postpone his mistrial motion.‛ Citing rule 18 of the Utah Rules of
Criminal Procedure, the State argues that ‚[c]hallenges to juror
bias must be against an individual juror‛ and not against an
entire prospective juror pool. According to the State, if defense
counsel had raised a challenge before the jury was selected, he
would have had to question each member of the venire
individually as to whether they heard and were affected by Juror
Five’s comments. As a result, the State insists that it was
objectively reasonable for defense counsel to avoid drawing
attention to those comments by postponing the challenge.

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¶13 ‚The interpretation of a rule of procedure is a question of
law that we review for correctness.‛ State v. Rodrigues, 2009 UT
62, ¶ 11, 218 P.3d 610 (brackets, citation, and internal quotation
marks omitted)). We do not agree that, before the swearing of
the jury, defense counsel was limited only to challenging
prospective jurors individually. Rather, defense counsel could
have properly moved for a mistrial during jury selection. Such a
motion would have been equivalent to a motion for new trial
under rule 24 of the Utah Rules of Criminal Procedure. See, e.g.,
State v. Duran, 2011 UT App 254, ¶¶ 12, 19, 262 P.3d 468 (using
the terms interchangeably). Rule 24 provides that ‚*t+he court
may, upon motion of a party or upon its own initiative, 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). Unlike a challenge to
an individual juror made pursuant to rule 18 of the Utah Rules
of Criminal Procedure, a motion for new trial pursuant to rule 24
may be made at any point during the trial process; the only
timing restriction is that such a motion ‚shall be made not later
than 14 days after entry of the sentence, or within such further
time as the court may fix[.]‛ Id. R. 24(c); see also State v. Harrison,
2001 UT 33, ¶ 6, 24 P.3d 936 (noting that Utah courts enjoy
‚broad latitude to control and manage the proceedings and
preserve the integrity of the trial process‛). We therefore
conclude that, before the selection and swearing of the jury,
defense counsel could have properly objected to the entire pool
of prospective jurors present when Juror Five made her
improper comments.

¶14 We also determine that, under these circumstances,
defense counsel’s performance was deficient due to his failure to
object to the seating of the jury once he became aware of the
potential taint. While it is true that a motion for new trial is
timely at any point during the trial process, it is also incumbent
upon the parties to make such motions at the earliest possible
opportunity to avoid wasting time and resources. As the State
points out, defense counsel had several opportunities after the
problematic comments were made and before the jury was

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sworn to move for a mistrial outside the jury’s hearing.3
Likewise, at any of those times, defense counsel could have
asked the court for time to speak with Defendant privately. We
can see no valid tactical reason for ignoring the unsubtle hints
given by the trial court and delaying such motion until after the
jury was sworn.4 See State v. Millett, 2015 UT App 187, ¶ 13, 356
P.3d 700 (‚*W+here a defendant can show that there was no
conceivable legitimate tactical basis for counsel’s deficient
actions, the first prong of Strickland is satisfied.‛ (Citation and
internal quotation marks omitted)).

¶15 We next consider whether defense counsel’s deficient
performance prejudiced Defendant.5 Defense counsel’s failure to

3. Of course, any attempt to question each prospective juror to
ferret out whether Juror Five’s comment actually tainted his or
her impartiality toward Defendant would have inevitably set the
stain deeper by drawing the jurors’ attention to its meaning, if
they had missed it the first time.

4. It is puzzling that the trial court, despite its immediate
recognition of and verbal handwringing about the possibility of
a tainted prospective juror pool, did not on its own initiative
dismiss that pool and restart voir dire with a fresh pool. When it
is obvious to a trial court that there is a high probability of a
tainted jury pool, the court should at least consider exercising its
inherent power to declare a mistrial sua sponte and grant a new
trial. See Utah R. Crim. P. 24(a).

5. It is not entirely clear whether demonstrable prejudice is a
requisite element in an unpreserved challenge, raised under the
rubric of ineffective assistance of counsel, to the empanelling of a
jury drawn from a tainted jury pool. A structural error is an
error ‚affecting the framework within which the trial proceeds,
rather than simply an error in the trial process itself.‛ Arizona v.
Fulminante, 499 U.S. 279, 310 (1991). A tainted or biased jury is
one type of structural error. See, e.g., Mach v. Stewart, 137 F.3d
(continued<)

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move for a mistrial or a new trial before the jury was sworn
resulted in the trial court’s decision to deny the motion. We must
determine whether there is a reasonable likelihood of a result
more favorable to the defendant. See Strickland v. Washington, 466
U.S. 668, 685, 687, 695 (1984). But see Mach v. Stewart, 137 F.3d
630, 633 (9th Cir. 1997) (suggesting that, in cases of structural
error, no prejudice need be shown).

¶16 Defendant was charged with a drug offense. When trial
counsel asked if any of the prospective jurors knew trial counsel
or Defendant, Juror Five responded that she had ‚had
affiliations with him‛ during her service with law enforcement,
‚especially during the time that [she] was serving as an agent for
the Weber-Morgan Narcotics Strike Force.‛ Defendant asserts

(<continued)
630, 633 (9th Cir. 1997) (holding that structural error occurred
when a jury was exposed ‚during voir dire to an intrinsically
prejudicial statement [which] resulted in the swearing in of a
tainted jury‛). However, it is not settled whether the prejudice
requirement of an ineffective assistance of counsel claim applies
when the deficient performance complained of is counsel’s
failure to preserve a structural error claim. See State v. Cruz, 2005
UT 45, ¶ 18, 122 P.3d 543 (noting, in a jury-instruction-error case,
a split amongst jurisdictions as to whether a defendant must
establish prejudice when alleging the existence of unpreserved
structural errors); see also State v. Maestas, 2012 UT 46, ¶ 57, 299
P.3d 892 (‚The denial of counsel is a structural error that does
not require a showing of harm ‘where assistance of counsel has
been denied entirely or during a critical stage of the
proceeding.’‛ (Emphases and citation omitted)); Strickland v.
Washington, 466 U.S. 668, 687 (1984) (when counsel’s
performance is deficient, ‚counsel *is+ not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment,‛
which amounts to the denial of the right to counsel). We assume,
without deciding, that prejudice is a requisite element of a
successful appeal here.

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that this statement strongly suggested to the jury that Defendant
had previously had drug-related run-ins with law enforcement,
and thereby prejudiced him. Cf. State v. Lafferty, 749 P.2d 1239,
1263 (Utah 1988) (Stewart, J., concurring in the result and
dissenting as to the penalty) (noting that, with reference to
specific other crimes, ‚the evidence of other crimes is itself
highly prejudicial and will undoubtedly taint a jury’s
deliberations with respect to the appropriate penalty‛), abrogated
on other grounds by Met v. State, 2016 UT 51; State v. High, 2012 UT
App 180, ¶ 26, 282 P.3d 1046 (discussing the risk of unfair
prejudice arising when a jury is tainted by references to gang
membership).

¶17 The State first responds that ‚*t+he other prospective
jurors could have understood that when [Juror Five] stated that
she had ‘affiliations’ through the strike force with ‘him,’ she was
referring to *trial counsel+, not Defendant.‛ (Emphasis omitted.)
The State asserts, ‚Because they knew *Juror Five] worked in law
enforcement, they may well have concluded that her ‘affiliations’
were with the criminal defense attorney representing
Defendant.‛ However, it is unlikely that prospective jurors
would have reached this understanding; when responding to a
question, people rarely refer to the questioner in the third person
rather than the second person. It would not be logical for a
prospective juror to believe that Juror Five would reply to trial
counsel’s question by stating that she had ‚had affiliations with
him‛ when she meant she had ‚had affiliations with you.‛

¶18 The State also responds that the prospective jurors might
have understood that the ‚affiliation‛ was ‚as a witness, a
victim, or a confidential informant.‛ But these categories still
bear a reasonable inference that Defendant had previously
engaged in drug-related activities of the sort for which he was
on trial, especially when Juror Five’s comment referred to her
multiple interactions ‚with him.‛ Indeed, many confidential
informants in drug cases agree to become informants in order to
‚work-off‛ their own drug-related charges.

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¶19 In any event, the issue is not whether the prospective
jurors could have arrived at an innocent understanding of Juror
Five’s comment but rather whether it is reasonable to presume
they all did. This is because a defendant’s right to a trial by a fair
and impartial jury is of a constitutional caliber. U.S. Const.
amend. VI; Utah Const. art. I, §§ 10, 12; State v. Bishop, 753 P.2d
439, 448 (Utah 1988) (‚An accused has a right to a fair trial by an
impartial jury.‛), overruled on other grounds by State v. Menzies,
889 P.2d 393 (Utah 1994)). Moreover, the trial court, who was
better situated to evaluate the effect on the prospective jurors
than an appellate court, expressed the opinion that the comment
created a ‚pretty significant situation‛ and even opined, ‚I’ve
got to do something.‛

¶20 The State argues that ‚the comment could not have
prejudiced Defendant,‛ because ‚*t+he jury heard testimony that
members of the strike force were familiar with Defendant
anyway.‛ The State asserts that ‚the unchallenged and
admissible evidence established the very thing Defendant says
[Juror Five’s+ comment may have implied—he was involved in
selling drugs.‛ We note that this testimony was limited to a
single reference by a detective that unnamed other agents ‚were
familiar with *Defendant+.‛ The fact that this trial testimony was
made after the jury had heard Juror Five’s comment may have
informed trial counsel’s decision not to challenge it as
inadmissible hearsay. But, more importantly, Juror Five was not
a witness and her comment was not made under oath. The
comment added corroborating weight to the evidence adduced
at trial but was not subject to cross-examination by Defendant.
See, e.g., State v. Pham, 2016 UT App 105, ¶ 9, 372 P.3d 734 (‚The
Sixth Amendment to the United States Constitution states in
relevant part, ‘In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
him . . . .’‛ (ellipses in original) (citation and additional quotation
marks omitted)), cert. granted, 384 P.3d 567 (Utah 2016). Thus,
even if the jury heard testimony of similar import to Juror Five’s
comment, her inadmissible comment impermissibly added
credibility to that testimony.

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¶21 At oral argument before this court, the State also asserted
that any possibility that the prospective jurors were tainted by
Juror Five’s comment was eliminated by the trial court’s further
questioning of the prospective jurors. After dismissing Juror
Five, the court asked the remaining prospective jurors about the
presumption of innocence:

Would any of you have difficulty in affording the
defendant his guarantee of being considered
innocent until proven guilty beyond a reasonable
doubt or stated another way would any of you
believe that because the defendant has been
charged in this case by the State, that there must be
some basis for his guilt? All right. I don’t see any
hands raised.

The State argues that the lack of response to this question
indicated that the prospective jurors did not consider Defendant
more likely to be guilty of the charged crime as a result of Juror
Five’s comment made during voir dire.

¶22 We do not agree that this question was a panacea for
Juror Five’s comment. The question asked by the court was
focused on ferreting out possible bias arising from the fact that
Defendant had been charged by the State. It was not aimed at
establishing whether the prospective jurors believed it was more
likely that Defendant was guilty of the charged drug crime due
to his previous ‚affiliations‛ with the Weber-Morgan Narcotics
Strike Force. Consequently, the trial court’s question did not
shed much light on the potential taint caused by Juror Five’s
improper comment. Furthermore, ‚*r+uling that a prospective
juror is qualified to sit simply because he says he will be fair
ignores the common-sense psychological and legal reality of the
situation.‛ State v. Saunders, 1999 UT 59, ¶ 35, 992 P.2d 951.
‚*B+ecause a prospective juror cannot know much about the case
at the time of voir dire, a juror cannot anticipate how he will
react when asked to decide a case once all the facts are known.‛
Id.; cf. id. ¶ 36 (holding that, where a trial court refused to allow

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further questioning of a prospective juror after one of her
answers suggested the possibility of bias but she further stated
that she believed the defendant to be innocent until proven
guilty, ‚We now make emphatically clear that a juror’s statement
alone that he or she can decide a case fairly pursuant to the law
given by the trial court is not a sufficient basis for qualifying a
juror to sit . . . . *C+oncluding the issue by taking a juror’s
conclusory statement that he or she will . . . decide the case fairly
is not sufficient‛). The trial court’s question about the
presumption of innocence therefore was not sufficient by itself to
eliminate the possibility that Juror Five’s comment tainted the
other prospective jurors.

¶23 Juror Five’s comment suggested that Defendant had
repeatedly had some involvement in the type of crimes he was
on trial for, and the comment improperly corroborated a
witness’s testimony. Absent Juror Five’s comment, there is a
reasonable likelihood that the result of Defendant’s trial would
have been different. See supra ¶ 15 note 5.

¶24 We conclude that trial counsel’s performance was
deficient and that the deficient performance prejudiced
Defendant. Defendant was therefore denied his right to the
effective assistance of counsel at his trial. Accordingly, we vacate
Defendant’s conviction and remand the case for a new trial.

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