State v. Soto

2018 UT App 147

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ANTHONY SOTO,
Appellant.

Opinion
No. 20160087-CA
Filed August 9, 2018

Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 151902137

Teresa L. Welch and Lisa J. Remal, Attorneys
for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.

ORME, Judge:

¶1 Anthony Soto was convicted of one count of aggravated
sexual assault, a first degree felony. Soto appeals, contending
that he was denied his constitutional right to an impartial jury
when a uniformed highway patrol officer and a court
information technology (IT) technician made inappropriate
comments to the jury in a nonpublic, court-employee elevator
inside the courthouse. We agree and therefore remand for a new
trial.
State v. Soto

BACKGROUND

¶2 During a lunch break on the second day of trial, the bailiff
assigned to the trial escorted the jury to a nonpublic,
court-employee elevator inside the courthouse. When they
entered, a uniformed highway patrol officer was inside.
According to the bailiff, while they were in the elevator, the
highway patrol officer remarked, “[L]ooks like a jury, do you
want me to tell you how this ends?” As they descended, the
elevator stopped, and a court IT technician got on. The IT
technician then began to speak with the jury. The bailiff paid
little attention to the conversation but then heard the IT
technician ask, “[C]an you say guilty?” Understandably
concerned by what he had heard, the bailiff brought the
comments to the trial court’s attention.

¶3 After lunch, and outside the presence of the jury, the trial
court relayed to the parties what had happened. The court
explained that it would speak to the jurors individually to find
out if any of them had heard what was said, and if they did,
whether the jurors thought they could remain impartial. If the
jurors answered that they had heard the comments but that the
comments did not affect their judgment, the court suggested it
would provide a curative instruction, explaining that the
highway patrol officer and IT technician were merely speaking
“off-the-cuff,” that they knew nothing about the case, and that
the jurors should not consider anything that they had heard in
the elevator.

¶4 The court brought the jurors in one-by-one and asked
them to report what they had heard. Juror 1 said that she heard
the IT technician say, “[C]onvict him or hang him or it was
something like that.” Juror 2 reported that the highway patrol
officer remarked, “[L]et me tell you how this ends.” Juror 3
stated that the IT technician said, “You can already tell he’s
guilty.” Juror 4 related the following: “[The IT technician] said,
Hello jury, and . . . someone in the jury said, Do we have that

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look? And [the IT technician] said guilty?” Juror 5 stated that the
highway patrol officer said, “Just say he’s guilty.” According to
Juror 6, the highway patrol officer asked the jury, “Are they
guilty?” Juror 7 stated that the highway patrol officer made a
comment but that she could not remember what it was. She also
related the following: “[The IT technician] came in and said, Oh,
it looks like a jury. And I said, Do we all have that look?” Juror
8’s report was nearly identical to Juror 7’s, but he added that
when one of the jurors asked the IT technician how he could tell
that they were on a jury, the IT technician said “something to the
effect of . . . looks guilty or something.”

¶5 Although each juror remembered hearing something
slightly different, all but one juror said that either the highway
patrol officer or the IT technician used the word “guilty” or
something similar. Jurors 1 and 2 offered that they took the
comments as jokes, and each of the jurors insisted that the
comments had no impact on their judgment. Nevertheless, Soto
moved for a mistrial, stressing that the gist of what the jurors
had heard touched on the sensitive subject of guilt and that the
comments were made by court staff in a nonpublic,
court-employee elevator. The court denied the motion because it
believed that the jurors took the comments as jokes and because
no juror hesitated in saying that they would remain impartial.
As a precaution, the court stated that it would provide a curative
instruction.

¶6 When the jury returned, the court offered the curative
instruction. The court explained that the highway patrol officer’s
role at the court is to guard the Utah Supreme Court when it is in
session. The court added, “He has really no connection to the
court system at all. He’s not a bailiff, he’s nothing like that. He
drives his police car, parks downstairs where we park and he
goes up to guard [the Court]. So he would have absolutely no
knowledge of any part of this trial.” The court told the jury that
the other person who entered the elevator was an IT technician.
Concerning the IT technician, the court stated, “Now we know

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what IT guys know about trials and that’s pretty much nothing.
We know that our equipment dies off on occasion and he comes
in and fixes it.” The court finished the instruction by reiterating
that the highway patrol officer and the IT technician knew
nothing about the case and stated that they were just trying to be
funny, which they were not.

¶7 At the close of trial, the jury found Soto guilty of
aggravated sexual assault. Soto appeals.

ISSUE AND STANDARDS OF REVIEW

¶8 Soto contends that the trial court erred in denying his
motion for a new trial. “When reviewing a [trial] court’s denial
of a motion for a new trial, we will not reverse absent a clear
abuse of discretion[.]” State v. Allen, 2005 UT 11, ¶ 50, 108 P.3d
730 (quotation simplified). “At the same time, however, we
review the legal standards applied by the [trial] court in denying
the motion for correctness.” Id. (quotation simplified). 1

ANALYSIS

¶9 Soto contends that he was denied his constitutional right
to an impartial jury when the trial court denied his motion for a
mistrial after a highway patrol officer and a court IT technician

1. Soto also contends that his conviction was not supported by
sufficient evidence. But this contention is largely unpreserved,
and although he asserts that we can reach it under the rubric of
plain error, his plain error analysis is inadequately briefed. In
addition, the remnants of his argument that were preserved lack
merit. Because of the deficiencies in the briefing of this second
issue and because we remand for a new trial on the first issue in
any event, we do not further address the second issue.

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made inappropriate comments to the jury while in a nonpublic,
court-employee elevator. We agree.

¶10 The United States Constitution and the Utah Constitution
guarantee a criminal defendant the right to an impartial jury.
U.S. Const. amend. VI; Utah Const. art. 1, § 12. These guarantees
require that verdicts be “above suspicion” as to whether any
juror might have been influenced by any inappropriate contact.
See State v. Anderson, 237 P. 941, 944 (Utah 1925). Because it is
difficult to show that a juror has been tainted by improper
contact, and because improper contact “may influence a juror in
ways he or she may not even be able to recognize,” our Supreme
Court has stated that “a rebuttable presumption of prejudice
arises from any unauthorized contact during a trial between
witnesses, attorneys or court personnel and jurors which goes
beyond a mere incidental, unintended, and brief contact.” State
v. Pike, 712 P.2d 277, 280 (Utah 1985).

¶11 The parties disagree whether the rebuttable presumption
of prejudice applies to the unique set of facts before us.
According to the State, our Supreme Court has drawn a hard
line between court participants and court personnel, applying
the rebuttable presumption only if the contact was between a
juror and a participant in the defendant’s trial. Soto argues that
the rebuttable presumption of prejudice applies more broadly
and includes all court personnel, even if they are not directly
involved in the case.

¶12 To be sure, in addressing the rebuttable presumption of
prejudice, the Court has at times made reference to court
participants and at times to court personnel. Indeed, it used both
terms in State v. Allen, 2005 UT 11, 108 P.3d 730. There, the Court
addressed whether Allen’s constitutional right to an impartial
jury had been violated where a juror’s spouse had told the juror
about the defense’s intention to move for a mistrial based on a
witness’s testimony and where the juror had relayed that
information to the other jurors. Id. ¶ 47.

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¶13 In discussing the rebuttable presumption, the Court
articulated the following:

Allen correctly observes that when any
unauthorized contact during a trial between
witnesses, attorneys or court personnel and jurors goes
beyond a mere incidental, unintended, and brief
contact, there is a rebuttable presumption of
prejudice, and that to counteract this presumption
the prosecution must prove that the unauthorized
contact did not influence the juror. However, the
State also correctly notes that this rebuttable
presumption only applies when the contact is
between a juror and other court participants, not
jurors and third parties unrelated to the
proceedings.

Id. ¶ 51 (emphases in original) (quotation simplified). The Court
concluded that the unauthorized contact between the juror and
the juror’s spouse did not trigger the rebuttable presumption of
prejudice because the contact did not occur “between a juror and
court personnel.” Id. ¶ 53 (emphasis added).

¶14 In our view, the Court’s references in Allen to “court
participants” were not meant to mark the boundaries of the
rebuttable presumption. Rather, the Court was highlighting a
key difference between the facts of Allen, where the conduct was
between a juror and a third party—the juror’s spouse—and other
cases in which our courts have applied a rebuttable presumption
of prejudice. See, e.g., State v. Erickson, 749 P.2d 620, 620–21 (Utah
1987) (contact between a juror and a witness); Pike, 712 P.2d at
279–80 (same); Anderson, 237 P. at 942–44 (same); Logan City v.
Carlsen, 799 P.2d 224, 225–26 (Utah Ct. App. 1990) (contact
between the jury and the bailiff assigned to the trial).

¶15 We conclude that the rebuttable presumption of prejudice
applies both to inappropriate contacts between jurors and court

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participants and to inappropriate contacts between jurors and
court personnel. Indeed, our Supreme Court has stated as much.
See Allen, 2005 UT 11, ¶¶ 51, 53 (stating that the rebuttable
presumption of prejudice “applies when the contact is between a
juror and other court participants, not jurors and third parties
unrelated to the proceedings,” but later noting the contact in
question was not “between a juror and court personnel”)
(quotation simplified); Pike, 712 P.2d at 280 (“[A] rebuttable
presumption of prejudice arises from any unauthorized contact
during a trial between witnesses, attorneys or court personnel
and jurors.”). And the Court’s references to “court personnel”
should not be interpreted to mean in-court participants only.
There can, of course, be some overlap between the two terms,
but in our view, the Court has not cordoned off inappropriate
contacts between jurors and court personnel who are not directly
involved in a defendant’s trial from the reach of the rebuttable
presumption of prejudice.

¶16 We stress that the overarching principle underpinning the
rebuttable presumption analysis is whether, despite the
inappropriate contact, the verdict remains “above suspicion.” See
Anderson, 237 P. at 944. A conclusion that the rebuttable
presumption does not apply to inappropriate contacts with court
personnel in general would be at odds with this overarching
principle and would dilute the right to an impartial jury. For
example, such a conclusion would preclude a court from
applying the rebuttable presumption of prejudice to comments
made by a judge not assigned to the defendant’s case, even
though one can readily envision circumstances where such
comments would be highly inappropriate. 2 The right to an
impartial jury is not so limited.

2. Consider a hypothetical encounter where another trial court
judge enters a nonpublic, court-employee elevator with the jury
and urges the jury to convict the defendant because, in the
(continued…)

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¶17 Having clarified the scope of the rebuttable presumption
of prejudice, we now address whether the highway patrol
officer’s and the IT technician’s comments triggered the
presumption. The State does not dispute that the highway patrol
officer and the IT technician are court personnel, but our analysis
does not end there. As our Supreme Court has stated, the
presumption is not triggered unless the encounter “goes beyond
a mere incidental, unintended, and brief contact.” Pike, 712 P.2d
at 280.

¶18 Although the contacts between the jury and the highway
patrol officer and the IT technician were relatively brief
encounters in an elevator, we cannot say that they were merely
incidental and unintended. In Carlsen, we held that a bailiff’s
brief remarks to the jury about the sentencing differences
between misdemeanors and felonies triggered a rebuttable
presumption of prejudice. 799 P.2d at 225–26. In reaching that
conclusion, we stressed that, although the bailiff’s comments did
not specifically relate to the defendant’s case, they “touched on
the extremely sensitive issue of sentencing.” Id. at 226.

¶19 The comments made in the present case were even more
inappropriate than those made by the bailiff in Carlsen. Here, the
highway patrol officer and the IT technician intentionally spoke
to the jurors about the most sensitive issue of a criminal case:
whether the defendant is guilty. We cannot think of another
topic that would create a stronger appearance of impropriety.
Accordingly, we conclude that the contacts, while brief, were

(…continued)
judge’s experience, criminal defendants are “almost always”
guilty and deserve to be convicted “99 times out of 100.”
Although it is unlikely that such an encounter would ever
happen, it would surely violate the right to an impartial jury and
trigger the rebuttable presumption of prejudice even though the
wayward judge was not a participant in the defendant’s trial.

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neither incidental nor unintended and that they therefore
triggered a rebuttable presumption of prejudice.

¶20 We now consider whether the State rebutted the
presumption of prejudice. We conclude that it did not.

¶21 The State insists that because each juror told the trial court
that the comments did not affect his or her impartiality and
because the court provided a curative instruction, the State
successfully rebutted the presumption of prejudice. But our
Supreme Court has stated that a juror’s denial that they were
influenced by an inappropriate contact “is not enough to rebut
the presumption of prejudice.” Pike, 712 P.2d at 281. Accord
Erickson, 749 P.2d at 621; Anderson, 237 P. at 944. As for the
curative instruction, it may have done as much harm as good.

¶22 Regarding the highway patrol officer, the court stated that
he
usually comes when the Supreme Court is in
session because they have to guard those judges
[up] there. . . . He has really no connection to the
court system at all. He’s not a bailiff, he’s nothing
like that. He drives his police car, parks downstairs
where we park and he goes up to guard those
folks. So he would have absolutely no knowledge
of any part of this trial.

Telling the jury that the highway patrol officer works with the
Supreme Court and that he parks downstairs where court
personnel and judges park does not eliminate the possibility that
the highway patrol officer knew about Soto’s case or at least the
propriety of a guilty verdict. But more importantly, highway
patrol officers are regularly involved in criminal trials as
witnesses and are seen as authoritative figures—perhaps all the
more so in the case of one assigned to protect the justices of the
State’s highest court. Any comments made by a highway patrol
officer about a defendant’s guilt could influence a juror,

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consciously or not. Moreover, the bailiff assigned to Soto’s case
was rightly concerned about the highway patrol officer’s
comments and stated that the highway patrol officer remarked,
“[L]ooks like a jury, do you want me to tell you how this ends?”
By making that statement and then, moments later, not
correcting the IT technician when he suggested that Soto was
guilty, the highway patrol officer implied either that he knew
something about Soto’s case or that criminal defendants are
invariably guilty. The curative instruction and the jurors’
responses that they could remain impartial were not enough to
dispel the taint of impropriety.

¶23 A rebuttable presumption of prejudice was triggered, and
it was not rebutted. The comments made by court personnel
leave us with no choice but to conclude that Soto’s right to an
impartial jury was violated.

CONCLUSION

¶24 We conclude that Soto’s constitutional right to an
impartial jury was violated when the highway patrol officer and
the IT technician made inappropriate comments to the jury in a
nonpublic, court-employee elevator. Accordingly, we reverse
Soto’s conviction and remand for a new trial.

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