Appeal from the District Court of the First Judicial District of the State of Idaho, Kootenai County. Hon. John P. Luster, District Judge.
The opinion of the court was delivered by: W. Jones, Justice
The decision of the district court denying the motion for new trial is reversed. The conviction and sentence are vacated and the case is remanded to the district court for a new trial.
Jonathan Ellington appeals from his convictions for one count of second-degree murder and two counts of aggravated battery. He argues on appeal that prosecutorial misconduct, evidentiary errors, a biased jury, and the cumulative-error doctrine entitle him to a new trial. We find merit in several of Mr. Ellington's assignments of error at trial, but we grant a new trial to Mr. Ellington on the basis that the district court abused its discretion in denying Mr. Ellington's motion for new trial brought after evidence came to light that the State's sole rebuttal witness, Fred Rice, an Idaho State Police officer, provided false testimony at trial that went to the defense's sole theory of the case.
II. FACTUAL AND PROCEDURAL BACKGROUND
At about 11:00 a.m. on January 1, 2006, Mr. Ellington left his friend Ron Cunningham's house in Athol, Idaho, to go back home. While driving, he came upon a white Honda Accord, driven by Jovon Larsen, age 22, with her sister Joleen, 18, in the passenger seat. Mr. Ellington claims the girls were playing "cat and mouse" with him, attempting to cut him off, and that they flipped him off. Joleen claims that they were not cutting Mr. Ellington off, and Jovon maintains that they did not flip off Mr. Ellington. Mr. Ellington passed the Honda in his Chevy Blazer, and at the next stop sign, got out of his car, approached the Honda that was now stopped behind him, and yelled and cursed at the girls and hit the driver's side window.*fn1
The girls called 911 and began following Mr. Ellington because there were no license plates on his vehicle and they wanted the police to be able to track him. After a short while, Mr. Ellington made a U-turn on the road and faced the girls, driving into their lane and then swerving back into the correct lane, passing them going the other way. Joleen testified that as Mr. Ellington went by them he flipped them off and mouthed an expletive at them. The girls turned around to continue to follow Mr. Ellington but were unable to catch up with him, and he went back home.
The girls decided to stop and wait for an officer from the sheriff's department to arrive, as they were instructed to do by the 911 operator, and then called their parents, Joel and Vonette Larsen, who arrived about fifteen minutes later. The deputy sheriff arrived and then left again to investigate, and Mr. and Mrs. Larsen went the other way to look for Mr. Ellington in their Subaru. While driving along the road, Mr. and Mrs. Larsen saw the Blazer drive out of an adjacent driveway and back onto the road, and they began to follow it. As the Blazer and the Subaru turned the corner that Joleen and Jovon were waiting at, the girls pulled the Honda out behind the Blazer but in front of their parents in the Subaru.*fn2 At the same time, Joleen placed another call to 911. The girls were going about ninety miles per hour and Mr. Ellington was probably going about a hundred miles per hour. Mr. Ellington turned onto Scarcello Road, going westbound, and both the girls in the Honda and Mr. and Mrs. Larsen in the Subaru continued to chase him. Although the 911 dispatcher told the girls to be careful, that Mr. Ellington was likely driving fast because he was scared, and to stop following the Blazer once they told her they were going ninety miles an hour, the girls did not stop.*fn3
Mr. Ellington made a left turn into a driveway on the south side of Scarcello Road, apparently intending to reverse his direction, where he skidded onto a snowbank. The Subaru then passed the Honda, coming into the (incorrect) eastbound lane of traffic. Mr. Larsen has testified inconsistently as to whether he was attempting to block the Blazer in, or whether he was attempting to block the Blazer from hitting the Honda. On direct examination, Mr. Larsen testified: "I told the wife, I go get around the girls and block him from hitting the girls, because he's already threatened the girls, he ran them off the road, I wanted to protect my girls." In contrast, Deputy William Klinkefus testified that when he interviewed Mr. Larsen upon arriving at the scene, Mr. Larsen told him that he "was able to park his vehicle behind the Jimmy in an attempt to block him in so that they could wait for law enforcement to get there."*fn4
Mr. Ellington reversed back out of the snowbank and was now pointed back east. As Mr. Ellington was attempting to drive away eastbound down Scarcello Road, the Blazer made contact with the front of the Larsens' Subaru which was still slowly moving toward the Blazer, seemingly blocking most of the eastbound lane. Acceleration marks suggest that Mr. Ellington was attempting to swerve around the Subaru. The expert testimony at trial also tended to show that the impact with the Subaru caused the Blazer to rotate somewhat in a counterclockwise direction, so that the Blazer was pointing across the road toward where the Honda was in the westbound lane, instead of pointing toward its initial path eastbound.*fn5 After making contact with the Subaru, the Blazer continued past the Subaru and impacted the front left corner of the Honda which was located mostly in the opposite, westbound lane.*fn6
After the impact, the Blazer rode up onto the Honda, and the Blazer pushed the Honda across the road and into the shoulder on the opposite side. Mr. Larsen then grabbed his .44 Magnum revolver from under his seat in the Subaru and got out of the passenger side of the car to run toward the Blazer, right around the time it was backing up and disengaging from the Honda. At the same time, Mrs. Larsen got out of the Subaru and ran toward the Honda. Mr. Larsen approached the passenger side of the Blazer around the same time that Mr. Ellington put the Blazer into drive. Mr. Larsen initially leveled his gun at Mr. Ellington from right outside the Blazer's passenger window, and then because he did not want to hit his daughters, fired a shot that traveled through the front-quarter passenger-side panel of the Blazer, allegedly attempting to hit the motor.
Mrs. Larsen was running across the road in front of Mr. Ellington, attempting to get to her daughters, and as Mr. Ellington punched the gas, she put her hands up and started to move back toward the middle of the road. Mrs. Larsen was struck by Mr. Ellington, which caused her body to come down on the hood of the Blazer before falling to the road. Once she fell to the road, the tires of the Blazer ran over her head and torso, causing catastrophic injuries that resulted in her death. Mr. Ellington left the scene and went back to the Cunningham residence, where he had been earlier in the day, and was eventually arrested there after police officers spotted his car.
Mr. Ellington was charged with two counts of aggravated battery for hitting the Honda, and one count of second-degree murder for Mrs. Larsen's death. At Mr. Ellington's first preliminary hearing, the magistrate found that there was not sufficient evidence to bind Mr. Ellington over for second-degree murder or for the aggravated batteries at issue here. The State then dismissed the original charges and refiled them under a new case. At the second preliminary hearing before a different magistrate Mr. Ellington was bound over on all charges. On March 23, 2006, Mr. Ellington filed a motion to dismiss arguing that the evidence adduced at the second preliminary hearing was not sufficient to hold him for trial. The court denied the motion, finding no abuse of discretion by the magistrate, while noting at least in the case of the aggravated battery counts, a serious question is present in this case as to whether Mr. Ellington was trying to escape a volatile situation or whether he intentionally brought harm to the girls or acted willfully in crashing into their car. In this court's opinion that is a question for a jury to resolve.
Jury selection occurred on Tuesday August 22, 2006, and the next day the State began to present its case-in-chief, which lasted seven days, from Wednesday, August 23, until Thursday, August 31. After the State rested, the defense moved for an acquittal on all charges under I.C.R. 29. Although the motion was denied, the district court granted it as to the "express malice" theory of second-degree murder, finding that a reasonable juror could not find, based on the evidence presented, that Mr. Ellington intentionally and deliberately took Mrs. Larsen's life away. However, the court allowed the case to go to the jury on the theory that Mr. Ellington acted with "implied malice."
The defense presented its case-in-chief over the course of three days, and the State then presented its single rebuttal witness, Corporal Fred Rice, to rebut the testimony of the defense's accident reconstruction expert, Dr. William Skelton. The jury deliberated for about a day and a half before returning their verdict that Mr. Ellington was guilty of two counts of aggravated battery and one count of second-degree murder. Mr. Ellington was sentenced to twenty-five years with twelve years fixed for the second-degree murder conviction, and fifteen years with seven years fixed for each aggravated battery charge, to be served concurrently. The Judgment and Sentence was filed on December 14, 2006, and Mr. Ellington timely filed a notice of appeal on January 4, 2007.
1. Did the State act improperly in four alleged acts of prosecutorial misconduct, including a comment on Mr. Ellington's post-arrest silence and the use of inflammatory language in questioning witnesses?
2. Did the district court make evidentiary errors in failing to strike the word "homicide" from an exhibit, admitting the opinion testimony of Trooper Daly, and allowing the pathologist to testify?
3. Were Mr. Ellington's due-process rights violated when three prospective jurors that were not impaneled expressed their opinions of Mr. Ellington's guilt during voir dire?
4. Were the errors at trial harmless, and did the accumulation of errors in the trial deprive Mr. Ellington of a fair trial?
5. Did the district court abuse its discretion in denying Mr. Ellington's motion for new trial based on newly-discovered evidence that the State's sole rebuttal witness testified inconsistently in a previous trial and may have perjured himself in Mr. Ellington's trial?
A. Prosecutorial Misconduct
Mr. Ellington assigns four distinct instances of prosecutorial misconduct: an improper comment on his post-arrest silence, questions to two witnesses designed to inflame the jury, and fraud upon the court in the offer of the testimony of the pathologist.
Where a defendant alleges error at trial that he had contemporaneously objected to, this Court reviews the error on appeal under the harmless error test. State v. Perry, 150 P.3d 209, 227, 245 P.3d 961, 979 (2010). When the alleged error is prosecutorial misconduct, first the defendant must demonstrate that prosecutorial misconduct occurred, and then the Court must declare a belief beyond a reasonable doubt that the misconduct did not contribute to the jury's verdict, in order to find that the error was harmless and not reversible. Id. at 227-28, 245 P.2d 979-80.
2. The State Improperly Commented on Mr. Ellington's Post-Arrest Silence
Mr. Ellington argues that the prosecutor acted improperly in allegedly commenting on Mr. Ellington's post-arrest silence through the questioning of a detective witness during the State's case-in-chief. On direct examination of the State's witness Sergeant Brad Maskell of the Kootenai County Sherriff's Department, when asking about Sergeant Maskell's arrival at the location on Scarcello Road where Mr. Ellington was apprehended after the incident, the prosecutor proceeded with the following line of questioning:
Q. At the time that you got there and he was in the back of that patrol car, was he under arrest?
Q. And so you did not interview him?
Mr. Ellington alleges that this was an improper comment on Mr. Ellington's post-arrest silence. The State argues that the prosecutor specifically asked the question, "And so you did not interview him" in a leading way, to avoid any comment on silence and therefore there was no improper comment by the prosecutor himself. In denying Mr. Ellington's motion for mistrial that was made immediately following this line of questioning, the district court found that "[i]n this particular case I don't think there is a sufficient showing to satisfy the court that it was the government's manifest intention to do that which has occurred here in terms of any inference that could be drawn," and as a result there was no misconduct.
The Fifth and Fourteenth Amendments of the U.S. Constitution, as well as Article I, section 13 of the Idaho Constitution, guarantee a criminal defendant the right not to be compelled to testify against himself. U.S. Const. amends. V, XIV; Idaho Const. art I, § 13. The U.S. Supreme Court has interpreted this right also to bar the prosecution from commenting on a defendant's invocation of that right. Griffin v. California, 380 U.S. 609, 613-14, 85 S. Ct. 1229, 1232-33 (1965). In the case of post-arrest silence, the U.S. Supreme Court has provided guidance as to when and how that silence can and cannot be used by the State at trial. First, because of the promise present in a Miranda warning,*fn7 a prosecutor may not use evidence of post-arrest, post-Miranda silence for either impeachment, Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245 (1976), or as substantive evidence of guilt in the State's case-in-chief, Wainwright v. Greenfield, 474 U.S. 284, 292, 106 S. Ct. 634, 639 (1986). A prosecutor may use evidence of pre-Miranda silence, either pre- or post-arrest, for impeachment of the defendant. Brecht v. Abrahamson, 507 U.S. 619, 628-29, 113 S. Ct. 1710, 1716-17 (1993) (pre-arrest, pre- Miranda silence may be used for impeachment); Weir v. Fletcher, 455 U.S. 603, 607, 102 S. Ct. 1309, 1312 (1982) (post-arrest, pre-Miranda silence may be used for impeachment). The U.S. Supreme Court has not spoken as to whether post-arrest, pre-Miranda silence may be used as evidence of substantive guilt, and the federal Circuits are currently split on the issue.*fn8 However, this Court has held that a defendant's right to remain silent attaches upon custody, not arrest or interrogation, and thus a prosecutor may not use any ...