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State v. Courtney

Court of Appeals of Utah

April 6, 2017

State of Utah, Appellee,
v.
Carl Mack Courtney, Appellant.

         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.

          OPINION

          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 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 ...

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