Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Thomas J. Ryan, District Judge.
The opinion of the court was delivered by: Lansing, Judge
Judgment of conviction for lewd conduct with a minor under sixteen, affirmed.
Vance A. Watkins appeals from his conviction for lewd conduct. His previous conviction for the same offense was vacated by the Idaho Supreme Court and the case was remanded for a new trial. During the second trial, a witness mentioned there had been a prior trial and appeal. Watkins asserts that the district court erred by declining to grant a mistrial after this disclosure.
In 2005, following a jury trial, Watkins was convicted of lewd conduct with a minor under sixteen, Idaho Code § 18-1508. That conviction was reversed and the case remanded for a new trial because important DNA evidence had been presented through inadmissible hearsay testimony. State v. Watkins, 148 Idaho 418, 224 P.3d 485 (2009). Prior to the new trial on remand, witnesses were cautioned not to mention that there had been a previous trial and appeal.
During Watkins' new trial, the State called a police officer as its second witness. During crossexamination, the following exchange took place:
DEFENSE COUNSEL: Okay. All right. Well, once again, referring back to an earlier time when you testified about this, do you remember talking about opening bags and then moving two pieces of paper around to find the condom?
THE WITNESS: In my transcript from the--well, can I say that because I was told I can't talk about the prior trial.
THE COURT: With regard to your prior testimony, do you recall making a different testimony than you are today?
WITNESS: I don't remember recalling. I read the transcript of the prior trial after the appeals court--so if that's what you're asking. THE COURT: At this time we need to take up an issue outside the presence of the jury. If you would please take the jury back to the jury room.
After hearing argument from the parties regarding possible measures, including declaration of a mistrial, to remedy the officer's disclosure that there had been a prior trial and appeal, the district court took the issue under advisement and excused the jury for the day. The following morning, the district court declined to grant a mistrial, concluding that a curative instruction would effectively remedy the disclosure. The court stated: "In my view the jury could equally find that a verdict in the first case was unfavorable to the State just as it could find that it was unfavorable to the defendant." The court then instructed the jury: "You have heard ...