State v. Daughton
| Decision Date | 11 July 2013 |
| Docket Number | No. 20110276–CA.,20110276–CA. |
| Citation | 308 P.3d 537,738 Utah Adv. Rep. 34 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Philip Victor DAUGHTON, Defendant and Appellant. |
| Court | Utah Court of Appeals |
OPINION TEXT STARTS HERE
Gary G. Kuhlmann and Nicolas D. Turner, Attorneys for Appellant.
John E. Swallow and Jeffrey S. Gray, Attorneys for Appellee.
Memorandum Decision
McHUGH, Judge:
¶ 1 Philip Victor Daughton appeals from his convictions and sentences for sodomy on a child, a first degree felony, seeUtah Code Ann. § 76–5–403.1(1)–(2) (LexisNexis 2008),1 sexual abuse of a child, a second degree felony, see id. § 76–5–404.1(2)–(3), and lewdness involving a child, a class A misdemeanor, see id. § 76–9–702.5(1), (2)(a). We affirm Daughton's convictions, but we vacate the trial court's sentencing order and remand for further sentencing proceedings.
¶ 2 Daughton's three convictions stem from sexual abuse that he committed against a child (Child) in Washington, Utah, on a single day in 2002. Daughton was charged on October 23, 2008, shortly after Child first reported the abuse to authorities. Before trial, Daughton moved to suppress certain evidence involving allegations of other acts. The trial court granted this motion and ruled that any evidence regarding or alluding to allegations of other misconduct would be excluded at trial pursuant to the Utah Rules of Evidence.
¶ 3 On January 19, 2011, an eight-member jury was selected but not sworn. Before the jury was excused and before the court adjourned for the day, the trial court advised the jury members, stating,
It's absolutely necessary that you remain fair and impartial during this trial. Maintain an open mind until the evidence and arguments are completed. During this recess and every break in this trial, do not discuss this case with anyone or amongst yourselves. Do not allow anyone to discuss the case in your presence. Do not talk to or communicate with me or any other participant in this trial.
¶ 4 The following day, a local newspaper, The Spectrum, published an article (the Article) containing information excluded by the trial court's order. When proceedings resumed that same day, the trial court polled each juror individually in chambers to discern whether anyone had read the Article. Only one juror, Juror 18, indicated that she had read some of The Spectrum that morning. When the trial court sought clarification and asked Juror 18 if she “read anything pertaining to this case,” Juror 18 responded, “Absolutely not.”
¶ 5 After questioning each juror, the trial court brought three jurors, including Juror 18, into chambers to ask a follow-up question. The trial court explained to these three jurors, “You have indicated you have not read this morning's newspaper.” The trial court then asked these jurors if they had spoken to anyone who had read The Spectrum. Juror 18 replied, “No one.”
¶ 6 The trial court concluded, Nevertheless, Daughton's trial counsel moved to dismiss the jury and set another trial date, arguing that the questions posed to the jurors imply that “there is an article in [ The Spectrum ] that's derogatory to [Daughton].” The trial court denied the motion, noting that the jury might just as reasonably infer that The Spectrum reported that the allegations against Daughton are false. The trial court stated, Trial counsel did not object to the thoroughness of the trial court's examination of the jurors or request that they be asked additional questions concerning the Article.
¶ 7 Upon returning to open court, the jury was sworn and the trial proceeded. The jury convicted Daughton on all three counts. The trial court sentenced Daughton to an indeterminate prison term of twenty-five years to life for the crime of sodomy on a child, a prison term of one to fifteen years for the crime of sexual abuse of a child, and one year in prison for the crime of lewdness involving a child. The trial court ordered the first two felony sentences to be served consecutively and the sentence for the misdemeanor to be served concurrently. Daughton timely appeals from his convictions and sentences.
¶ 8 First, Daughton concedes that trial counsel did not preserve the issue but argues that the trial court committed plain error by failing to adequately poll the jury regarding inherently prejudicial publicity. “[I]n general, appellate courts will not consider an issue, including constitutional arguments, raised for the first time on appeal unless the trial court committed plain error or the case involves exceptional circumstances.” State v. Dean, 2004 UT 63, ¶ 13, 95 P.3d 276. “To demonstrate plain error, a defendant must establish that (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 [defendant].” Id. ¶ 15 (citation and internal quotation marks omitted). “If any one of these requirements is not met, plain error is not established.” Id. (citation and internal quotation marks omitted).
¶ 9 Daughton argues that the trial court erred because it did not adequately question Juror 18. Although the State concedes that the Article discussed excluded evidence and was inherently prejudicial, it contends that the trial court's questioning of the jury was sufficient to ensure that the jury was not tainted.
¶ 10 In State v. Clark, 675 P.2d 557 (Utah 1983), the Utah Supreme Court instructed that “when requested by counsel to poll the jury regarding publicity during the trial, the trial court must rule as a matter of law whether the publicity is potentially prejudicial or not prejudicial at all.” Id. at 560–61. “If the publicity is potentially prejudicial, then the [trial] court must question the jurors regarding their exposure and their understanding of it.” Id. at 561. The supreme court also explained that the publication of excluded evidence falls in the category of inherently prejudicial publicity. Id. at 560.
....
¶ 12 Daughton argues that Juror 18's “responses to the trial court's polling questions are contradictory” and therefore “it should have been obvious to the trial court that it needed to ask [Juror 18] to clarify her contradictions regarding her exposure to the article in question.” In particular, Daughton asks us to infer from the inaudible portion 2of Juror 18's response that Juror 18 had read some potentially relevant information and that the trial court should have inquired further into the specific material that Juror 18 had seen.
¶ 13 However, a fair reading of the transcript indicates that Juror 18 admitted to having read parts of The Spectrum that morning. When the trial court began further questioning, Juror 18 stated, Although this statement is confusing as to whether Juror 18 read some part of the Article, the trial court continued its examination by asking directly, “Did you read anything pertaining to this case?” Juror 18 unequivocally responded, “Absolutely not.” Thus, despite the initial confusion, the trial court adequately inquired and clarified that Juror 18 had not been exposed to the prejudicial publicity. The trial court was in the best position to assess the truthfulness of Juror 18's statement that even though she had read some of The Spectrum that day, she had not read the Article related to Daughton's case. See Hale v. Big H Constr., Inc., 2012 UT App 283, ¶ 16, 288 P.3d 1046 (). Indeed, we “presum[e] that the trial judge, having personally observed the quality of the evidence, the tenor of the proceedings, and the demeanor of the parties, is in a better position to perceive the subtleties at issue than we can looking only at the cold record.” State v. Calliham, 2002 UT 86, ¶ 23, 55 P.3d 573. Furthermore, although the transcriber was unable to understand all of Juror 18's response to one of the trial court's questions, it may have been audible to the court and counsel at the time. Nevertheless, both the court and counsel were satisfied that Juror 18 had not read the Article.
¶ 14 The trial court adequately performed its duty under State v. Clark, 675 P.2d 557 (Utah 1983), to poll...
To continue reading
Request your trial
-
State v. Tapusoa
...which information was presented at sentencing, we review his claim for abuse of discretion. See State v. Daughton , 2013 UT App 170, ¶ 18, 308 P.3d 537 ("The trial court has substantial discretion in conducting sentencing hearings ..., and we will in general overturn the trial court's sente......