District Court, Logan Department The Honorable Kevin K. Allen
Elizabeth Hunt, Attorney for Appellant
D. Reyes and Aaron G. Murphy, Attorneys for Appellee
David N. Mortensen authored this Opinion, in which Judges
Kate A. Toomey and Diana Hagen concurred.
Although he testified that the events underlying this case
never happened, a jury convicted Defendant Brian K. Williams
of sexually abusing his three daughters. After Defendant was
convicted, the district court sentenced him to multiple
prison terms, several of which are potentially for the
remainder of his life. Because we conclude that
irregularities occurred in the State's juror examination,
reverse his convictions and remand for a new trial.
Defendant's three daughters, Oldest, Middle, and
Youngest, accused Defendant of sexually abusing them
repeatedly over a five-year period. During this time, the
alleged abuse included, but was not limited to, touching his
daughters' breasts and pubic areas; showering with them;
and on one occasion, forcing his daughters to undress and
smear body paint on each other as Defendant watched.
The State charged Defendant with six counts of aggravated
sexual abuse of a child and six counts of forcible sexual
abuse. During juror examination, the trial court asked
potential jurors about their personal and professional lives
before allowing counsel for the State and Defendant to
conduct additional juror examination.
During trial, the jury heard testimony from Defendant's
daughters, who detailed the abuse. The jury also heard
testimony regarding the daughters' difficulties in
school, their depression, Oldest's habit of cutting
herself, and Oldest and Middle's joint overdose on
antidepressants and subsequent hospitalizations. The
State's expert testified that these behaviors were
consistent with symptoms exhibited by sexual abuse victims.
Oldest's trial testimony conflicted with her testimony at
Defendant's preliminary hearing in some respects. She
initially testified that Defendant showered with her once or
twice a month before the family moved, but at trial she said
it happened only once, total, in the family's first
house. At the preliminary hearing, she testified that she
could not recall Defendant touching her in the shower, but at
trial she said he "cupped" her breasts and buttocks
and washed her body. Oldest testified at the preliminary
hearing that Defendant touched her breasts and vaginal area
five to ten times at the first house; but at trial she could
not recall him touching any of her body parts at the first
house. Shortly after her assertion at trial that Defendant
had not touched her in the first house, she testified
regarding an incident in the first house during which
Defendant had touched her inappropriately while wrestling.
Middle originally testified at length at the preliminary
hearing about Defendant's abuse of her sisters, but later
admitted at trial that she had never seen him inappropriately
touching Oldest or Youngest. When Middle initially reported
Defendant's abuse, she denied that he had ever inserted
his finger into her vagina. But at trial, she testified that
he did so on multiple occasions, explaining that she
originally denied this behavior because she wanted to
minimize the trouble Defendant would be in.
Youngest's testimony that Defendant left "white
gooey stuff" on her legs after a back rub was a detail
reported for the first time at trial. Youngest explained that
she only recalled that fact as she was testifying. At trial,
on cross-examination, Youngest frequently answered that she
could not recall the information she was asked to provide.
All three daughters' stories regarding the body-painting
incident differed from one another. Oldest testified that she
and Middle had been painting a picture when the sisters
started painting each other. Defendant then instructed them
to remove their clothing, and he stripped down to his
underwear, before they all painted one another. When she was
asked about this incident at the preliminary hearing, she
denied that it occurred; only at trial did she allege that it
took place. Middle testified that Defendant had told them he
ordered the paints online. When he produced them, they all
removed their clothes and started painting each other.
Youngest also testified that Defendant bought the paints
online and explained that he made them remove their clothing.
Middle and Youngest testified that after they painted each
other, all four showered together. Oldest made no such claim.
Defendant testified in his own defense and denied sexually
abusing any of his daughters. The jury convicted Defendant as
charged. He now appeals.
AND STANDARDS OF REVIEW
Defendant argues that we should reverse his convictions for
any one of five reasons. First, he asserts that the jury
instructions given at trial were inadequate. Second, he
asserts that during the State's closing argument, the
prosecutor engaged in misconduct by (1) impermissibly
bringing to the jury's attention facts not in evidence,
(2) arguing that Defendant lied, (3) disparaging the
integrity of defense counsel, and (4) appealing to the
jury's fears by seeking a verdict to protect society.
Third, he asserts that the State violated rule 608 of the
Utah Rules of Evidence by improperly bolstering the
credibility of its witnesses. Fourth, he asserts that the
State offered inadmissible evidence of his invocation of his
right to counsel. And fifth, he asserts that during his
testimony, he was improperly asked to opine on the veracity
of other witnesses.
Defendant did not raise any of these arguments before the
trial court. Instead, he brings his claims under the
doctrines of ineffective assistance of counsel and plain
error. To demonstrate ineffective assistance of counsel,
(i) identify specific acts or omissions by counsel that fall
below the standard of reasonable professional assistance when
considered at the time of the act or omission and under all
the attendant circumstances, and (ii) demonstrate that
counsel's error prejudiced the defendant, i.e., that but
for the error, there is a reasonable probability that the
verdict would have been more favorable to the defendant.
State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993). To
demonstrate plain error, Defendant
must show the following: (i) An error exists; (ii) the error
should have been obvious to the trial court; and (iii) the
error is harmful, i.e., absent the error, there is a
reasonable likelihood of a more favorable outcome for the
appellant, or phrased differently, our confidence in the
verdict is undermined.
Id. at 1208-09.
Although Defendant raises many potential grounds for
reversing his convictions, we are persuaded by his arguments
regarding the irregularities and impropriety that occurred
during juror examination. Because we reverse on that ground and
remand for a new trial, we need not consider the other issues
raised. See State v. Holm, 2017 UT App 148, ¶ 8
n.2, 402 P.3d 193.
While the issue of determining when a juror examination has
crossed the line into impermissible indoctrination is one of
first impression, the true purpose of juror examination is
well settled in our jurisprudence: to "determine, by
inquiry, whether biases and prejudices, latent as well as
acknowledged, will interfere with a fair trial if a
particular juror serves in it." Salt Lake City v.
Tuero, 745 P.2d 1281, 1283 (Utah Ct. App. 1987) (cleaned
up). But the privacy interests of prospective jurors
"must be balanced against the historic values . . . and
the need for openness of the process."
Press-Enterprise Co. v. Superior Court of
California, 464 U.S. 501, 512 (1984).
To preserve fairness and at the same time protect legitimate
privacy, a trial judge must at all times maintain control of
the process of jury selection and should inform the array of
prospective jurors, once the general nature of sensitive
questions is made known to them, that those individuals
believing public questioning will prove damaging because of
embarrassment, may properly request an opportunity to present
the problem to the judge in camera but with counsel
present and on the record.
Id. In determining whether the trial court
properly balanced the privacy interests of the jurors with
Defendant's constitutional right to present the case
before an impartial jury, we review the court's decision
for plain error.
Defendant argues that "the prosecution began its
campaign to bolster the alleged victims at the outset of the
jury selection." After reviewing the transcript of juror
examination, we agree. We conclude that an error occurred and
that the error should have been obvious to the trial court.
Because Defendant's challenge is best understood by
experiencing the flow of the State's juror examination in
its odd entirety, we quote at length from it. Any emphasis is
The prosecutor began by sharing, "My experience has been
that jurors want to do a good job. They want to do a good
job. They just want to make sure they understand all the
evidence, and they want to do a good job." She then
assured the prospective jurors, "So as I talk to you
right now, just understand there are not right or wrong
answers. I'm just trying to find out how you view life,
how you view your job as a juror, things of that nature,
and maybe what your thoughts are on child sex abuse
. . . . So please feel free to raise your hand."
After encouraging members of the venire to "just be
honest, " she initiated a discussion about child sex
[Prosecutor]: How do you know children are sometimes sexually