308 P.3d 537
Utah Ct. App.2013Background
- Defendant Philip Daughton was convicted by an eight‑member jury of sodomy on a child (first‑degree felony), sexual abuse of a child (second‑degree felony), and lewdness involving a child (class A misdemeanor) for abuse occurring in 2002.
- Prior to trial the court excluded evidence and references to other alleged misconduct.
- After jury selection but before swearing, a local newspaper published an article containing material the court had excluded. The court individually questioned jurors in camera; one juror (Juror 18) initially acknowledged reading the paper but then stated she had not read anything pertaining to the case.
- Defense counsel moved to dismiss the jury; the court denied the motion, swore the jury, and trial proceeded; defendant was convicted on all counts.
- On appeal defendant argued (1) the trial court committed plain error by inadequately polling jurors about prejudicial publicity, (2) ineffective assistance for failing to press further inquiry, and (3) sentencing error. The court affirmed convictions but vacated and remanded sentencing.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Daughton) | Held |
|---|---|---|---|
| Whether trial court plainly erred in polling jurors about prejudicial publicity | Court’s in‑camera questioning was adequate; jurors, including Juror 18, denied reading case‑related material | Polling was inadequate because Juror 18’s answers were contradictory and required further inquiry | No plain error; court’s questioning satisfied State v. Clark and demonstrated no juror taint |
| Whether trial counsel provided ineffective assistance by not requesting further juror questioning | Counsel had tactical reasons; further questioning could disadvantage defendant; no deficiency shown | Counsel should have sought clarification of Juror 18’s ambiguous statements | No ineffective assistance; counsel’s conduct had conceivable tactical basis and deficiency/prejudice not shown |
| Whether sentence for sodomy on a child was lawful under the statute in effect when offense occurred | State concedes sentencing used an increased penalty and that resentencing is required | Sentencing used 2008 statute (25‑to‑life) though offense occurred in 2002 when statute provided lower indeterminate terms | Sentence for sodomy was illegal as an ex post facto application; vacated and remanded for resentencing under the 2002 statute |
| Whether remand should address concurrency vs. consecutiveness of sentences | State notes sentencing error requires remand; concurrency issue can be resolved on remand considering statutory factors | Defendant argued trial court wrongly weighed mitigation and imposed consecutive terms | Court remanded for resentencing; did not reach merits of consecutive vs. concurrent ordering — trial court to consider statutory factors on remand |
Key Cases Cited
- State v. Clark, 675 P.2d 557 (Utah 1983) (trial court must determine whether publicity is prejudicial and, if so, question jurors about exposure)
- State v. Dean, 95 P.3d 276 (Utah 2004) (plain‑error standard on unpreserved issues)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑pronged test for ineffective assistance: deficient performance and prejudice)
- State v. Bryant, 290 P.3d 33 (Utah Ct. App. 2012) (illegal sentence review and correction when sentence exceeds statutory range)