District Court, Ogden Department The Honorable Michael D.
DiReda No. 121901670
Adams, Attorney for Appellant
D. Reyes and Tera J. Peterson, Attorneys for Appellee
Michele M. Christiansen authored this Opinion, in which
Judges Gregory K. Orme and Kate A. Toomey concurred.
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.
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
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
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 ...