Opinion No. 82
from the District Court of the Second Judicial District of
the State of Idaho, Idaho County. Hon. John H. Bradbury,
District Judge. Hon. James F. Judd, Senior District Judge.
district court judgment of conviction for murder is vacated
and remanded for a new trial.
B. Thomas, State Appellate Public Defender, Boise, for
appellant. Shannon N. Romero argued.
Lawrence G. Wasden, Attorney General, Boise, for respondent.
L. LaMont Anderson argued.
Henry Lankford (Lankford) appeals from his judgment of
conviction after a jury in Idaho County District Court found
him guilty of two counts of felony murder. Lankford argues
that the district court erred in multiple ways and that he is
entitled to a new trial. The State argues that Lankford has
failed to prove that reversible error was committed by the
district court and that Lankford's convictions should be
FACTUAL AND PROCEDURAL BACKGROUND
and his brother, Bryan Lankford (Bryan), were both convicted
and sentenced to death for the 1983 murders of Robert and
Cheryl Bravence, who died from blunt force trauma to the head
while camping in the Sheep Creek area of Idaho County.
State v. Lankford, 116 Idaho 860, 781 P.2d 197
(1989); State v. Lankford, 113 Idaho 688, 747 P.2d
710 (1987). Bryan's death sentence was overturned by the
Supreme Court of the United States because the State failed
to provide him with notice that the death penalty could be
imposed. Lankford v. Idaho, 500 U.S. 110, 127
(1991). The Ninth Circuit vacated Lankford's conviction
and sentence and ordered the state to re-try Lankford or
release him. Lankford v. Arave, 468 F.3d 578, 592
(9th Cir. 2006) (finding that the district court erred
because it did not inform jurors that they needed more than
just Bryan's uncorroborated testimony to find Lankford
trial was held in 2008, and on February 13, 2008, a jury
again found Lankford guilty of both murders. Lankford then
filed a motion for new trial. In July 2008, Lankford was
sentenced to two consecutive fixed life sentences, which he
timely appealed. On October 7, 2009, the district court
denied Lankford's motion for new trial. Lankford filed
his Second Motion for a New Trial on October 29, 2009, and on
December 6, 2013, that motion was denied as well. Lankford
timely appealed from the denial of his motions for new trial.
Lankford also filed a pro se Rule 35 motion for correction of
an illegal sentence which the district court found to be
advances four primary arguments in support of his claim that
the district court erred. These are that the district court:
(1) made biased and prejudicial comments during voir dire;
(2) provided erroneous and misleading jury instructions; (3)
violated Idaho Code section 19-2405; and (4) improperly
denied Lankford's pro se Rule 35 motion. In addition to
these claimed errors by the district court, Lankford alleges
prosecutorial misconduct and that the cumulative effect of
the district court's errors and the prosecutor's
misconduct warrant a new trial. Lankford's contentions
will be discussed in turn.
The district court did not err during voir dire.
contends that he was denied his right to due process and a
fair trial because, during the course of voir dire, the
district court advised potential jurors that there had been a
previous trial. Lankford argues that this irreparably
prejudiced the jury and that a new trial is warranted. The
State responds that Lankford's claim is barred by the
invited error doctrine and that Lankford has failed to
establish fundamental error.
Standard of Review
review constitutional claims de novo. State v.
Easley, 156 Idaho 214, 218, 322 P.3d 296, 300 (2014).
However, because Lankford did not object to the district
court's statements to the jury, he must demonstrate that
the district court's actions constituted fundamental
error. State v. Draper, 151 Idaho 576, 588,
261 P.3d 853, 865 (2011). Fundamental error is error that:
"(1) violates one or more of the defendant's
unwaived constitutional rights; (2) plainly exists (without
the need for any additional information not contained in the
appellate record, including information as to whether the
failure to object was a tactical decision); and (3) was not
harmless." State v. Perry, 150 Idaho 209, 228,
245 P.3d 961, 980 (2010).
Lankford's claim is not barred by the invited error
purpose of the invited error doctrine is to prevent a party
who caused or played an important role in prompting a trial
court to give or not give an instruction from later
challenging that decision on appeal." State v.
Blake, 133 Idaho 237, 240, 985 P.2d 117, 120 (1999).
"It has long been the law in Idaho that one may not
successfully complain of errors one has acquiesced in or
invited. Errors consented to, acquiesced in, or invited are
not reversible." State v. Dunlap, 155 Idaho
345, 379, 313 P.3d 1, 35 (2013) (internal citations omitted)
(quoting State v. Owsley, 105 Idaho 836, 838, 673
P.2d 436, 438 (1983)). However, an appellant who did not
encourage the district court to offer the specific
instructions given, but merely failed to object, is not
precluded by the invited error doctrine from raising an issue
on appeal. State v. Adamcik, 152 Idaho 445, 477, 272
P.3d 417, 449 (2012); Blake, 133 Idaho at 240, 985
P.2d at 120.
the State has presented various transcript excerpts and other
evidence which suggest that Lankford explicitly agreed to the
district court's voir dire advisement regarding the prior
trial, the State ultimately concedes that, although discussed
between the parties, "there is nothing in the record
explicitly stating what [defense] counsel suggested" the
court do to handle the issue of the earlier trial. Because
there is no record of explicit suggestion, encouragement, or
acquiescence by Lankford regarding the advisement and because
a failure to object is not enough to invoke the invited error
doctrine, we hold that Lankford's claim is not barred and
will consider the underlying claim of fundamental error.
The district court's advisement about Lankford's
prior trial did not constitute fundamental error.
argues that the district court's statement about a prior
trial and appeal is indistinguishable from telling the jury
that Lankford had been found guilty and convicted by a
previous jury. Indeed, Lankford states "The district
court told jurors during voir dire that Mark had previously
been tried and convicted of the charged crimes in 1984 . . .
." Lankford then contends that the district court's
statement was "inherently prejudicial, "
"cannot be cured or minimized by a contemporaneous
limiting instruction, " affected the "base
structure" of a constitutional right, and requires that
Lankford's "convictions must be vacated." More
succinctly stated, Lankford is arguing that the district
court's advisement created an implied bias in the jury.
Court has noted many times, the right to a fair trial before
an impartial jury is fundamental to both the U.S.
Constitution and the Idaho Constitution. U.S. Const. amends.
VI, XIV; Idaho const. art. 1, sections 7, 13; see also,
e.g., State v. Abdullah, 158 Idaho 386, 421,
348 P.3d 1, 36 (2014). The Supreme Court of the United States
has noted: "It is elementary that a fair trial in a fair
tribunal is a basic requirement of due process, "
Weiss v. United States, 510 U.S. 163, 178 (1994);
and this Court has stated that the due process requirements
of the Idaho Constitution require "a trial by a fair and
impartial jury." State v. Nadlman, 63 Idaho
153, 163, 118 P.2d 58, 62 (1941). Impartiality of a juror may
be rooted in an "actual or implied" bias.
United States v. Wood, 299 U.S. 123, 133 (1936);
Abdullah, 158 Idaho at 421, 348 P.3d at 36. Actual
bias deals with the specific state of mind of an individual
juror and is proved by questioning the juror about his actual
biases. I.C. § 19-2018(2); Abdullah, 158 Idaho
at 421–22, 348 P.3d at 36–37. Implied bias,
however, conclusively presumes bias as a matter of law based
on the existence of a specific fact. I.C. § 19-2018(1);
Wood, 299 U.S. at 133.
courts, including the Supreme Court of the United States,
have held that the fact that a jury knew that the defendant
has been found guilty or convicted by a previous jury for the
same crime creates an implied bias and constitutes
fundamental error because it is inherently prejudicial.
Leonard v. United States, 378 U.S. 544, 544 (1964)
(per curiam) (recognizing that a jury comprised in part of
jurors that had just previously heard a defendant pronounced
guilty in open court on similar charges was "plainly
erroneous"); see also, e.g., Arthur v.
Bordenkircher, 715 F.2d 118, 120 (4th Cir. 1983);
United States v. Williams, 568 F.2d 464,
470–71 (5th Cir. 1978); Bailey v. State, 521
A.2d 1069, 1076 (Del. 1987); Salas v. People, 493
P.2d 1356, 1357 (Colo. 1972); State v. Lee, 346
So.2d 682, 683–85 (La. 1977); Weber v. State,
501 So.2d 1379, 1381–85 (Fla. Dist. Ct. App. 1987).
But see State v. Fraga, 864 N.W.2d 615, 621–23
(Minn. 2015) (holding that the knowledge of two jurors that
defendant was previously convicted for the same charges did
not create an implied bias); People v. Dashnaw, 116
A.D.3d 1222, 1229–30 (N.Y.App.Div. 2014) (holding that
a trial court's statement to potential jurors that the
defendant's prior conviction had been reversed did not
deprive the defendant of a fair trial where jurors had been
repeatedly instructed that they could not consider that fact
in their deliberations).
however, this Court need not decide whether the disclosure of
a prior conviction for the same offense would be cause for a
finding of implied bias because, despite Lankford's
contention otherwise, the district court did not mention a
prior conviction or that Lankford was previously found
guilty. Rather, the district court stated: "There was a
prior trial in Idaho County in 1984 for the offenses for
which he is now charged. And an Appeals Court held that Mr.
Lankford was not effectively represented and that his trial
was therefore unfair."
law has clearly distinguished between the mention of a
previous trial and the mention of a previous conviction.
State v. Watkins, 152 Idaho 764, 766, 274 P.3d 1279,
1281 (Ct. App. 2012) ("We are not persuaded that [the
mention of a prior trial and an appeal] is equivalent to the
disclosure that a previous jury had found him guilty.").
As our Court of Appeals stated in Watkins this
distinction has been noted by several other jurisdictions as
well. Id. (citing e.g., People v.
Boose, 406 N.E.2d 963, 964–66 (Ill.App.Ct. 1980)
(holding that a witness's references to defendant's
incarceration and appeal were harmless); Brooks v.
State, 918 So.2d 181, 208 (Fla. 2005) (State's
reference to prior trial without disclosing the result was
not reversible error); Brown v. Kentucky, 313 S.W.3d
577, 607 (Ky. 2010) (holding that a jury's knowledge that
defendant was being retried but not that he had been found
guilty, did not violate the defendant's rights).
issue, therefore, is not whether the mention of a prior
conviction for the same offense creates an inherent,
or implied bias, but whether the mention of a prior trial
and appeal is so extremely and inherently prejudicial
that the jury "is not susceptible to rehabilitation
through further questioning." People v.
Lefebre, 5 P.3d 295, 300 (Colo 2000) (overruled on other
grounds by People v Novotny, 320 P.3d 1194 (Colo 2014));
State v Brown, 732 N.W.2d 625, 629 n2 (Minn 2007);
see also Smith v Phillips, 455 U.S. 209, 222 (1982)
(O'Conner, J, concurring) (noting that implied bias is
reserved only for extreme cases). We hold that it is not.
Code section 19-2020 allows for a challenge for implied bias
for any one of nine causes and "for no other." I.C.
§ 19-2020 ("Grounds of challenge for implied bias.
- A challenge for implied bias may be taken for all or any of
the following causes and for no other: [listing nine
causes]."). This Court has been invited on numerous
occasions to expand the scope of section 19-2020 to include
other grounds for finding implied bias; however, this Court
has consistently declined to do so. See, e.g.,
State v. Luke, 134 Idaho 294, 299, 1 P.3d 795, 800
(2000) (declining to extend implied bias to jailor/prisoner
relationship); State v. Cypher, 92 Idaho 159,
167–68, 438 P.2d 904, 912–13 (1968) (declining to
extend implied bias to attorney/client relationship between
juror and attorney); State v. Major, 105 Idaho 4,
7–8, 665 P.2d 703, 706–07 (1983) (same). Such an
approach is not only in line with our own jurisprudence,
see, e.g., State v. Gordon, 5 Idaho 297,
299, 48 P. 1061, 1062 (1897) ("Our statutes  specify
nine separate grounds upon which a challenge for implied bias
may be predicated . . . . We cannot understand why a rule so
long established, and which should be familiar to everyone .
. . is so uniformly ignored."); Luke, 134 Idaho
at 299, 1 P.3d at 800 ("Because the legislature saw fit
to include the language 'and for no other' we will
not extend the statute to situations that are analogous, but
not specifically mentioned." (quoting State v.
Bowman, 124 Idaho 936, 942, 866 P.2d 193, 199 (Ct. App.
1993)), but is also in line with decisions from the Supreme
Court of the United States. See, e.g., Dennis v.
United States, 399 U.S. 162, 167 (1950) (declining to
find implied bias where the plaintiff was the State and
jurors were government employees); Chandler v.
Florida, 449 U.S. 560, 581 (declining to find bias
without a showing of actual bias). Indeed, the Supreme Court
has noted that the "long held . . . remedy for
allegations of juror partiality is a hearing in which the
defendant has the opportunity to prove actual
bias." Phillips, 455 U.S. at 215 (emphasis
added). Implied bias is reserved only for extreme cases.
Id. at 222 (O'Conner, J., concurring)
("While each case must turn on its own facts, there are
some extreme situations that would justify a finding of
implied bias."); Hunley v. Godinez, 975 F.2d
316, 318 (7th Cir. 1992) ("Use of the "implied
bias" doctrine is certainly the rare exception.");
Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990)
(asking whether "this is one of those extreme
situations" that allow a finding of implied bias
(internal quotation marks omitted)); Fraga, 864
N.W.2d at 622 (Minn. 2015) ("Other courts have found
implied bias in extreme situations . . . .").
determining whether an "extreme situation" exists
each case must turn on its own facts. Here, there are three
specific reasons why the advisement of the district court
about Lankford's previous trial and conviction is not
such a situation:
district court did not reveal the outcome of Lankford's
previous trial but only stated that there had been a previous
trial and appeal.
noted earlier, there is a clear distinction between a
reference to a previous trial and a previous conviction.
While the mention of a previous conviction is certainly very
damaging, see, e.g., Arthur, 715 F.2d at
119 ("[W]e are hard pressed to think of anything more
damning to an accused than information that a jury had
previously convicted him for the crime charged."
(quoting United States v. Williams, 568 464, 471
(5th Cir. 1978)), the fact the jury is aware that a defendant
is facing trial for a second time simply does not carry the
same weight. Watkins, 152 Idaho at 766, 274 P.3d at
1281 ("We are not persuaded that this is equivalent to
the disclosure that a previous jury had found him
guilty."). The fact that a defendant is being retried,
without reference to a defendant's conviction or guilt,
is no more prejudicial than the fact that the defendant has
been held to answer to a criminal charge. Such prejudice is
not a basis for relief because it is neither extreme nor
unfair, but rather is an inevitable part of the criminal
process. Brown, 313 S.W.3d at 607 ("[T]he fact
that the jury may have been aware that [the defendant] was
being retried no more infringed upon his right to be presumed
innocent than does the jury's awareness that the
defendant was arrested, indicted, and put on trial.").
particularly true in this case where the fact of
Lankford's retrial was inevitably going to come to the
jury's attention. In the twenty-five year period between
Lankford's original trial and the retrial, various
witnesses had died and as a result their testimonies from the
previous trial were read into the record. Additionally, all
the evidence used in the retrial was still marked with the
exhibit stickers from the previous trial. Further,
Lankford's own witnesses referred to the prior trial and
Lankford's counsel stated during cross-examination of
Robert Lankford that: "And it's -- maybe at
Mark's prior trial, right, you might have seen him
there." Thus, even absent the trial judge's
advisement, the jury was sure to have realized that Lankford
had been previously tried. Such a consequence is inherently
part of the criminal process and cannot be deemed extreme or
There was discussion between counsel and the Court about how
to handle the issue of the previous trial and defense counsel
did not object at the time the Court made the statement.
Lankford's counsel had wished to ensure that the jury did
not hear from the court or the parties that there had been a
previous trial, they could have requested that the court not
mention the trial and objected to any such mention. They did
in a pretrial hearing the district court specifically
discussed mentioning the previous trial during voir dire with
counsel and explicitly invited defense counsel to provide
advice on how to handle the fact of the previous trial.
Defense counsel recognized the importance of the issue and
stated that they had discussed mentioning the previous trial
during voir dire as "a potential strategy."
Ultimately the court told defense counsel: "I'm not
going to cover it until you signal to me what your approach
is going to be on it." Thus, defense counsel had ample
opportunity to address the issue in advance of trial and
request that the previous trial not be mentioned.
Furthermore, defense counsel questioned potential jurors
"about the fact that they'll be referring at times
to prior hearings and prior trial."
is "a strong presumption 'that counsel made all
significant decisions in the exercise of reasonable
professional judgment.' " State v.
Abdullah, 158 Idaho 386, 418, 348 P.3d 1, 33 (quoting
Cullen v. Pinholster, 563 U.S. 170, 195 (2011)).
Thus, given the multiple opportunities for defense counsel to
inform the district court as to how they wanted the fact of a
previous trial handled, it is almost certain that the
decision to not object to the advisement was strategic. Such
"decisions are 'virtually unchallengeable . . .
.' " Id. (quoting Strickland v.
Washington, 466 U.S. 668, 690 (1984)). Under these
circumstances, the advisement does not constitute the extreme
situation that requires a finding of implied bias.
court properly questioned the jurors whether their knowledge
of the previous trial would cause them to have actual bias
against Lankford and properly instructed the jurors that they
must presume Lankford innocent regardless of his prior trial.
noted previously, the Supreme Court of the United States has
stated that the "long held . . . remedy for allegations
of juror partiality is a hearing in which the defendant has
the opportunity to prove actual bias."
Phillips, 455 U.S. at 215. Here, the district court,
immediately after advising the potential jurors of the
previous trial, specifically questioned their ability to be
impartial: "[I]s there anyone here who thinks he or she
would not be able to judge the charges against Mr. Lankford
because of the earlier trial that Mr. Lankford went
through?" Moreover, at that same time, the district
court also specifically instructed the jurors that:
As jurors you are not to consider the earlier trial and
deliberate whether or not Mr. Lankford is guilty. In other
words, you must presume him to be innocent and judge the
charges against him solely on the evidence that is presented
during this trial without considering in any manner his
presume that "the jury followed the jury instructions
given by the trial court in reaching its verdict, "
Abdullah, 158 Idaho at 445, 348 P.3d at 60, and
that, "[a]lthough not always dispositive, the court is
entitled to rely on assurances from venire persons concerning
partiality or bias." State v. Hairston, 133
Idaho 496, 506, 998 P.2d 1170, 1180 (1999). Consequently, any
inappropriate effect the advisement might have had on the
jury was properly addressed by the district court's
questioning and instruction.
given the specific facts of this case, specifically that the
court did not mention Lankford's previous finding of
guilt or conviction; that the fact of a previous trial
inevitably was going to come to the jury's attention;
that defense counsel clearly had multiple opportunities to
object to the advisement and did not do so; and that the
district court properly guarded against actual bias by
questioning and instructing the jurors, we hold that this is
not an "extreme situation" such that would require
this Court to depart from our previous decisions denying the
expansion of implied bias. Accordingly, we hold that the
district court's advisement of Lankford's previous
trial and appeal did not create an implied bias.
The district court did not err in its jury
contends that the district court committed reversible error
by providing the jury with improper and ambiguous jury
instructions regarding the legal requirements necessary to
find Lankford guilty of felony murder. Lankford argues that
the court did not explicitly instruct the jurors that they
had to find that Lankford formed an independent intent to rob
the Bravences before they were killed as a prerequisite to
convicting him of felony murder. Lankford acknowledges that
counsel failed to object to the instructions at trial but
argues that the errors in the jury instructions constitute
fundamental error because they relieved the State of its
burden to prove beyond a reasonable doubt that Lankford
formed the intent to commit robbery before the Bravences were
Standard of Review
jury instructions fairly and adequately present the issues
and state the applicable law is a question of law over which
this Court exercises free review." State v.
Humpherys, 134 Idaho 657, 659, 8 P.3d 652, 654 (2000).
Additionally, "[T]he correctness of a jury instruction
depends on whether there is evidence to support the
instruction." State v. Draper, 151 Idaho 576,
588, 261 P.3d 853, 865 (2011). When considering whether the
jury was properly instructed, "[w]e look at the jury
instructions as a whole, not individually . . . ."
Id. Finally, "[a]n erroneous instruction will
not constitute reversible error unless the instructions as a
whole misled the jury or prejudiced a party."
party fails to object to jury instructions this Court reviews
the instructions for fundamental error. Id.
Fundamental error is an error that "so profoundly
distorts the trial that it produces manifest injustice and
deprives the accused of his fundamental right to due
process." State v. Lavy, 121 Idaho 842, 844,
828 P.2d 871, 873 (1992). In State v. Perry, 150
Idaho 209, 228, 245 P.3d 961, 980 (2010), this Court stated
that in order to constitute fundamental error the defendant
must show that the error: "(1) violates one or more of
the defendant's unwaived constitutional rights; (2)
plainly exists (without the need for any additional
information not contained in the appellate record, including
information as to whether the failure to object was a
tactical decision); and (3) was not harmless." In
addition, this Court has held that errors in jury
instructions are fundamental if the error functions to
"relieve the State of its duty to prove all elements
of the charges beyond a reasonable doubt."
Draper, 151 Idaho at 588, 261 P.3d at 865; see
also State v. Anderson, 144 Idaho 743, 749, 170 P.3d
886, 892 (2007) ("The United States Supreme Court has
held that in criminal trials 'the State must prove every
element of the offense, and a jury instruction violates due
process if it fails to give effect to that requirement.'
" (quoting Middleton v. McNeil, 541 U.S. 433,
The district court's jury instructions did not
is correct in asserting that to be guilty of felony murder
Lankford must have individually formed the intent to rob the
Bravences before they were killed. State v. Pina,
149 Idaho 140, 147, 233 P.3d 71, 78 (2010) ("Idaho's
felony murder rule requires a finding that each participant
had the specific intent to commit the underlying
felony."). It is equally true that Lankford could not be
guilty of felony murder if he was an accessory after the
fact. State v. Cheatham, 134 Idaho 565, 571, 6 P.3d
815, 821 (2000) ("The general rationale behind the
felony murder rule is that the intent to commit the felony
substitutes for the malice requirement. Where the intent to
commit the felony does not arise until after the homicide has
occurred, the rationale behind the rule no longer
applies."). Thus, if the district court relieved the
State of having to prove that Lankford had the intent to
commit robbery before the Bravences were killed, or
instructed the jury that they could find Lankford guilty even
if he was only an accessory after the fact, then the
instructions constituted fundamental error. Draper,
151 Idaho at 588, 261 P.3d at 865.
the district court correctly instructed the jury. Jury
Instruction No. 11 clearly states that to find Lankford
guilty of first degree murder the state must prove that
Lankford "was a principal to or aided and abetted in the
commission of a robbery during which an unlawful killing of
Robert [and Cheryl] Bravence occurred." Jury Instruction
12 explicitly states:
In order to find Mark Lankford guilty of Murder in the First
Degree, you must first find the following beyond a reasonable
1. Mark Lankford intended to commit the act of
robbery against the persons of Robert and/or Cheryl Bravence;
2. Mark Lankford formed the intent to commit the act
of robbery prior to the commission of the homicide(s).
If you cannot find both of the above elements are true beyond
a reasonable doubt, you must find Mark Lankford not guilty of
Murder in the First Degree.
Instructions 13–19 then explain the elements necessary
for the commission of robbery and instruct on the meaning of
perpetration and aiding and abetting. Jury Instruction 19A
gives the definition of accessory after the fact:
Idaho law defines "Accessories" as persons who,
having knowledge that a felony has been committed, unlawfully
conceal it from a peace officer, or harbor and protect the
person charged with or convicted thereof.
Should you conclude that the defendant, Mark Henry Lankford,
was merely an accessory after the fact, rather than a
principal to the murders of Robert Bravence and/or Cheryl
Bravence, you must acquit him of the respective count(s)
for which he is now charged.
as a whole, these instructions clearly state that Lankford
could not be found guilty of felony murder without: (1)
committing robbery against the Bravences; and (2) forming the
intent "to commit the act of robbery against the persons
of Robert and/or Cheryl Bravence . . . prior to the
commission of the homicide(s). Further, Jury Instruction 19A
makes it categorically clear that if the jury believed
Lankford's version of events and found that he was only
an accessory after the fact they "must acquit him of the
respective count(s) for which he is now charged."
attempts to make much of a colloquy that took place during
the defense's closing argument to support his claim that
that district court erred and that the jury instructions were
ambiguous and misleading. The exchange is as follows:
Defense Counsel: [Jury Instruction No. 13] says, on or about
June 21st, in the State of Idaho, Robert and Cheryl Bravence
had possession of personal property which Mark Henry Lankford
took from their person or immediate possession against their
will. And this is the reason you can't rob a dead person
Prosecutor: Your honor, I object. I don't think that is a
correct statement of the law.
The Court: I don't either. Well, ladies and gentlemen,
I've instructed you on the law, so go to my instructions
and refer to that.
argues that by agreeing with the prosecutor, the district
court erroneously implied that, "as a matter of law, you
can rob a dead person, " and that as a result even if
the jurors believed that Lankford did not do anything but
help conceal the bodies and take property from the Bravences
after Bryan killed them, Lankford's own testimony about
what happened would have required the jury to find Lankford
guilty of robbery and thus felony murder.
follows the "stream of events" theory. See,
e.g., State v. McLeskey, 138 Idaho 691,
697–98, 63 P.3d 111, 117–18 (2003). Under this
theory, a defendant is guilty of felony murder as long as the
defendant formed the intent to commit the robbery before the
victim died, whether the victim's personal property is
taken before or after the death occurs is immaterial. See
State v. Fetterly, 109 Idaho 766, 771–72, 710 P.2d
1202, 1207–08 (1986) (holding that a burglary continued
after the victim was killed and until the victim's
possessions were removed from the home). Thus, while
defendants cannot commit robbery by taking the personal
property of people who were already dead when the defendant
found them defendants can commit robbery by forming the
intent to commit robbery before the victim is killed and then
taking the victim's personal property after the death.
Thus, because the element of robbery that requires that the
defendant "take personal property in the possession of
another" can occur after the victim has died; it would
not be incorrect to state that "you can rob a dead
person." Furthermore, any ambiguity that may have arisen
from the colloquy was ameliorated by the district court's
direction to "go to my instructions and refer to that,
" because the jury instructions clearly stated that to
find Lankford guilty the jury had to find that Lankford
formed the intent to rob the Bravences before their deaths
and that if the jury found that Lankford was only an
accessory after the fact they "must acquit him."
because the district court did not misstate the law and
because the jury instructions clearly state that Lankford had
to form the intent to commit robbery before the
Bravences' deaths and that Lankford could not be
convicted if he was merely an accessory after the fact, the
jury instructions did not "relieve the State of its
duty to prove all elements of the charges beyond a reasonable
doubt." Draper, 151 Idaho at 588, 261 P.3d at
865. Thus, the first Perry prong-that one or more of
the defendant's unwaived constitutional rights be
violated- has not been met. Because we find no error in the
district court's instructions we do not reach the issue
of invited error.
The district court did not err by denying Lankford's
request for a new trial based on the provisions of Idaho Code
argues that the district court erred when it denied his
motion for a new trial based on violations of Idaho Code
section 19-2405. Lankford makes two arguments in this regard:
(1) the plain language of section 19-2405 stating that
"all testimony must be produced anew" explicitly
disallows the use of prior sworn testimony from a previous
trial; and (2) language in section 19-2405 stating that
"the former verdict cannot be used or referred to either
in evidence or in argument" specifically prevented the
district court from mentioning that there had been a previous
Standard of Review
denial of a motion for new trial is reviewed for an abuse of
discretion." State v. Stevens, 146 Idaho 139,
144, 191 P.3d 217, 222 (2008). "To prove an abuse of
discretion, this Court applies the three-factor test. The
three factors are: (1) whether the trial court correctly
perceived the issue as one of discretion; (2) whether the
trial court acted within the boundaries of this discretion
and consistent with the legal standards applicable to the
specific choices available to it; and (3) whether the trial
court reached its decision by an exercise of reason."
Fox v. Mountain West Elec., Inc., 137 Idaho 703,
711–12, 52 P.3d 848, 856–57 (2002). "The
interpretation of a statute is a question of law over which
this Court exercises free review." State v.
Herren, 157 Idaho 722, 725, 339 P.3d 1126, 1129 (2014).
Whether Idaho Code section 19-2405 allows the use of
sworn testimony from a previous trial
Code section 19-2405 states in its entirety:
The granting of a new trial places the parties in the same
position as if no trial had been had. All the testimony must
be produced anew, and the former verdict can not be used or
referred to either in evidence or in argument.
argues that the phrase "all testimony must be produced
anew" requires that testimony in the new trial must be
submitted by live witnesses and not by transcripts from the
first trial. This is true, Lankford contends, even if the
witnesses are unavailable. In support of this argument
Lankford relies on a Montana case, State ex rel. Mazurek
v. District Court of Twentieth Judicial Dist., 22 P.3d
166, 169 (Mont. 2000), and an Oklahoma statute, 22 Okla.
Stat. Ann. § 951(A). Lankford's reliance is
court has consistently and clearly stated that only the Idaho
Rules of Evidence, as promulgated by this Court, determine
the admissibility of evidence. See, e.g., I.R.E.
1102 ("Statutory provisions and rules governing the
admissibility of evidence, to the extent they are evidentiary
and to the extent that they are in conflict with applicable
rules of Idaho Rules of Evidence, are of no force or
effect."); State v. Lopez-Orozco, 159 Idaho
375, 382, 360 P.3d 1056, 1063 (2015) ("[A]ny statute
pertaining to the admission of evidence is of no force or
effect where an Idaho Rule of Evidence covers the same
subject matter."); State v. Zimmerman, 121
Idaho 971, 974, 829 P.2d 861, 864 (1992) ("[T]o the
extent that this statute attempts to prescribe the
admissibility of hearsay evidence . . . it is of no force or
effect."). Thus, in determining whether the phrase
"all testimony must be produced anew" precludes the
use of prior sworn testimony from unavailable witnesses
Lankford should have first looked to the Idaho Rules of
Evidence rather than the jurisprudence of sister states.
the Idaho Rules of Evidence, prior testimony of an
unavailable declarant is admissible if (1) it is relevant and
(2) it comports with the requirements of Idaho Rule of
Evidence 804(b)(1). Evidence is relevant if it tends "to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence." I.R.E. 401.
Under Idaho Rule of Evidence 804, prior testimony is
admissible when: (1) the declarant is unavailable as a
witness and (2) the party against whom the testimony is
offered had an opportunity and similar motive to develop the
testimony. A declarant is unavailable when, among other
things, he or she is "unable to be present or to testify
at the hearing because of death . . . ." I.R.E. 804(a).
the challenged testimony is from witnesses who testified in
the first trial but died before the second trial. Because
they are deceased, these witnesses were clearly unavailable
under Rule 804(a) "to be present or to testify" at
the second trial. Further, because the testimony was given in
the first trial for the same charges, the defense "had
an opportunity and similar motive to develop the
testimony" as required by Rule 804(b)(1). The relevance
of the challenged testimony is not disputed. Thus, because
the witnesses were unavailable and because the testimony was
"given as a witness at another hearing of the same or a
different proceeding . . . [and] the party against whom the
testimony is now offered . . . had an opportunity and similar
motive to develop the testimony by direct, cross, or redirect
examination" the testimony was admissible under Idaho
Rule of Evidence 804. Accordingly, because the testimony was
admissible under the Idaho Rules of Evidence, any
interpretation of Idaho Code section 19-2405 that would
prohibit the testimony would be invalid. State v.
Howard, 150 Idaho 471, 477, 248 P.3d 722, 728 (2011)
("To the extent that this statute attempts to prescribe
the admissibility of hearsay evidence and is in conflict with
the Idaho Rules of Evidence, it is of no force or
effect." (citations and internal quotation marks
omitted). This Court has unequivocally held that "[t]he
testimony of a deceased witness, given at a former trial, may
be read as evidence at a subsequent trial between the same
parties and involving the same issues." State v.
Johnston, 62 Idaho 601, 612, 133 P.2d 809, 814 (1941).
Idaho Code section 19-2405 does not provide a basis for
departing from this rule and the district court did not abuse
its discretion by permitting testimony from the first trial
to be read into the record in the second trial.
Whether Idaho Code section 19-2405 prevented the district
court from ...