2013 Unpublished Opinion No. 783
Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. Steven C. Verby, District Judge.
Judgment of conviction for lewd conduct with a minor child; orders denying motion for appointment of counsel and denying I.C.R. 35 motion, affirmed.
Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent.
Curtis Edward Jackson appeals from the district court's judgment of conviction entered upon a jury verdict finding him guilty of three counts of lewd conduct with a minor child under sixteen, Idaho Code § 18-1508, and from the district court's order denying his motion for appointment of counsel for purposes of his Idaho Criminal Rule 35 motion. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jackson was charged with three counts of lewd conduct based on allegations that he committed sexual offenses against a nine-year-old girl on multiple occasions in 2009. Jackson's first trial ended in a mistrial. In the second trial, the jury found Jackson guilty of all charges. The district court imposed three concurrent unified terms of life with fifteen years determinate. Jackson filed a Rule 35 motion and a motion for appointment of counsel. The district court denied both motions. Jackson timely appeals.
Jackson claims that: (1) the district court erred by failing to excuse a juror for cause; and (2) the district court erred by denying his motion for appointment of counsel to assist him in pursuing his Rule 35 motion.
A. Biased Juror
"The determination whether a juror can render a fair and impartial verdict is directed to the sound discretion of the trial court and will not be reversed absent a showing of abuse of discretion." State v. Hauser, 143 Idaho 603, 609, 150 P.3d 296, 302 (Ct. App. 2006). When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
A criminal defendant has a constitutional right to trial by an impartial jury. U.S. Const. amends. V, VI, XIV; Idaho Const. art. I, §§ 7, 13. The Idaho Code provides criminal defendants with the right to a jury trial, as well as the ability to strike potential jurors for cause if actual or implied bias exists. I.C. §§ 19-1902, 19-2019. See also I.C.R. 24(b) (addressing the procedure for voir dire examination and challenges for cause). Actual bias is defined as "the existence of a state of mind on the part of the juror in reference to the case, or to either of the parties, which, in the exercise of a sound discretion on the part of the trier, leads to the inference that he will not act with entire impartiality." I.C. § 19-2019(2). However, a trial court does not abuse its discretion by refusing to excuse for cause a juror whose answers during voir dire initially give rise to a challenge for cause but who later assures the court that he or she would be able to remain fair and impartial. Nightengale v. Timmel, 151 Idaho 347, 353, 256 P.3d 755, 761 (2011).
In the instant case, Jackson contends that Juror 34 should have been removed for cause because she expressed bias towards him. Juror 34 initially stated that if the case was "purely" Jackson's word against the nine-year-old girl's word, she would believe the testimony of the nine-year-old girl. Thereafter, defense counsel asked the district court to remove Juror 34 for cause. The State accepted the district court's invitation for further inquiry and, after discussing the reasonable doubt standard, the following exchange occurred:
[STATE]: Can you perform your duty here as a juror?
[JUROR 34]: I believe so.
[STATE]: If I don't do my job and put forth the evidence to convince you when it's time to go back into the jury room, can you vote not guilty?
[JUROR 34]: Yes.
The State objected to Jackson's motion to excuse Juror 34 for cause, whereupon defense counsel further inquired of Juror 34:
[DEFENSE COUNSEL]: Okay. And it's six, six and let's say I don't put on any evidence at all and it seems reasonable, would you find my client guilty based on it seems reasonable? How about it's plausible?
[JUROR 34]: It would have to be more than ...