Opinion No. 79
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 the case is remanded for a new
Fredericksen, State Appellate Public Defender, Boise, for
appellant. Shannon N. Romero argued.
Lawrence G. Wasden, Attorney General, Boise, for respondent.
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 were brutally murdered 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 ineffective assistance of counsel
based upon Lankford's attorney requesting a jury
instruction that failed to adequately instruct jurors
regarding accomplice testimony).
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. The appeal was suspended until proceedings
on Lankford's motions for new trial were decided. 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
untimely. On July 25, 2016, this Court
released its original decision in this appeal. We thereafter
granted the State's petition for rehearing.
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). The impartiality of a juror
may be challenged for "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 as to whether he
or she can serve with entire impartiality. 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 juror 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 containing jurors that
had 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).
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
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. at 766-67, 274 P.3d at 1281-82 (citing
inter alia, People v. Boose, 406 N.E.2d
963, 964-66 (Ill.App.Ct. 1980) (holding that a witness'
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
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'Connor, 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'Connor, 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:
The 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 F.2d 464,
471 (5th Cir. 1978)), the fact that 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
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 testimony from the
previous trial was 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
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.
The 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
effect of the jury's awareness of the previous trial was
properly addressed by the district court's questioning
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 the "extreme situation" 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:
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
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
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 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 is not incorrect to state
that "you can rob a dead person." Further, 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
"[t]he 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). This Court applies
a three-part test when evaluating discretionary decisions of
the trial court. We consider "(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, 52 P.3d 848, 856 (2002).
case presents somewhat of an exception to the standard of
review which we traditionally apply to decisions on a motion
for new trial. Here, Judge Judd, who presided over the
proceedings for new trial, was not the judge who heard the
evidence presented at trial. Judge Judd did preside over a
three-day evidentiary hearing on the second motion for new
trial. Thus, we defer to his factual findings based upon the
evidence presented to him. This reflects the deference that
we traditionally accord factual findings in light of
"the trial judge's special opportunity to assess and
weigh the credibility of the witnesses who appear."
State v. Tierney, 109 Idaho 474, 476, 708 P.2d 879,
deference does not, however, extend to the district
court's evaluation of the evidence presented in earlier
proceedings, as Judge Judd relied on the same record as is
before this Court. "[W]here a motion for a new trial is
heard and passed upon by a judge who did not preside at the
trial of the case, and an appeal is taken . . . the appellate
court must 'examine and weigh the evidence the same as
the nisi prius court should do.' "
Shabinaw v. Brown, 131 Idaho 747, 750-51, 963 P.2d
1184, 1187-88 (1998) (quoting Van Camp v. Emery, 13
Idaho 202, 207, 89 P. 752, 754 (1907)). "Under these
limited circumstances, this Court has determined that its
role on appeal is to freely review the evidence and weigh the
evidence in the same manner as the trial court would do when
ruling on a motion for new trial." Id. at 751,
963 P.2d at 1188 (citing Nafus v. Campbell, 96 Idaho
366, 368, 529 P.2d 266, 268 (1974)).
Court reviews questions of law de novo." State,
Dep't of Health & Welfare v. Housel,
140 Idaho 96, 100, 90 P.3d 321, 325 (2004). "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
Idaho Code section 19-2405 provides:
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 held that only the Idaho
Rules of Evidence, as promulgated by this Court, determine
the admissibility of evidence. See 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, Lankford's
reliance on Idaho Code section 19-2405 is misplaced.
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 ...