District Court, Salt Lake Department The Honorable Mark S.
Kouris No. 151902137
L. Welch and Lisa J. Remal, Attorneys for Appellant
D. Reyes and Lindsey L. Wheeler, Attorneys for Appellee
Gregory K. Orme authored this Opinion, in which Judges David
N. Mortensen and Jill M. Pohlman concurred.
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
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
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.
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."
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.
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.
At the close of trial, the jury found Soto guilty of