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State v. Soto

Court of Appeals of Utah

August 9, 2018

State of Utah, Appellee,
v.
Anthony Soto, Appellant.

          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.

         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 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 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 ...


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