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State v. Williams

Court of Appeals of Utah

May 24, 2018

State of Utah, Appellee,
v.
Brian K. Williams, Appellant.

          First District Court, Logan Department The Honorable Kevin K. Allen No. 141100362

          Elizabeth Hunt, Attorney for Appellant

          Sean D. Reyes and Aaron G. Murphy, Attorneys for Appellee

          Judge David N. Mortensen authored this Opinion, in which Judges Kate A. Toomey and Diana Hagen concurred.

          MORTENSEN, Judge

         ¶1 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, [1] we reverse his convictions and remand for a new trial.

         BACKGROUND

         ¶2 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.

         ¶3 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.[2]

         ¶4 During trial, the jury heard testimony from Defendant's daughters, who detailed the abuse.[3] 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.

         ¶5 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.

         ¶6 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.

         ¶7 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.

         ¶8 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.

         ¶9 Defendant testified in his own defense and denied sexually abusing any of his daughters. The jury convicted Defendant as charged. He now appeals.

         ISSUES AND STANDARDS OF REVIEW

         ¶10 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.

         ¶11 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, Defendant must:

(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.

         ANALYSIS

         ¶12 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.[4] 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.

         ¶13 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.[5] 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.[6]

         ¶14 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 our own.

         ¶15 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."

         ¶16 After encouraging members of the venire to "just be honest, " she initiated a discussion about child sex abuse:

[Prosecutor]: How do you know children are sometimes sexually ...

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