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State v. Lankford

Supreme Court of Idaho

July 3, 2017

STATE OF IDAHO, Plaintiff-Respondent,
v.
MARK H. LANKFORD, Defendant-Appellant.

         2017 Opinion No. 79

         Appeal 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.

         The district court judgment of conviction for murder is vacated and the case is remanded for a new trial.

         ON REHEARING

          Eric Fredericksen, State Appellate Public Defender, Boise, for appellant. Shannon N. Romero argued.

          Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. LaMont Anderson argued.

          HORTON, Justice.

         Mark 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 affirmed.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Lankford 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).

         A new 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.[1] 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.[2] On July 25, 2016, this Court released its original decision in this appeal. We thereafter granted the State's petition for rehearing.

         II. ANALYSIS

         Lankford 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.

         A. The district court did not err during voir dire.

         Lankford 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.

         1. Standard of Review

         We 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).

         2. Lankford's claim is not barred by the invited error doctrine.

         "The 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.

         While 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.

         3. The district court's advisement about Lankford's prior trial did not constitute fundamental error.

         Lankford 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.

         As this 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.

         Many 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).

         Here, 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."

         Idaho 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 defendant's rights).

         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.

         Idaho 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 . . . .").

         In 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:

         a. 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.

         As 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 trial.").

         This is 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 unreasonable.

         b. 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.

         If 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 not.

         Indeed, 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."

         There 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.

         c. 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.

         As 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 earlier trial.

         We 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 and instruction.

         Therefore, 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.

         B. The district court did not err in its jury instructions.

         Lankford 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 killed.

         1. Standard of Review

         "Whether 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." Id.

         When a 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, 437 (2004))).

         2. The district court's jury instructions did not constitute error.

         Lankford 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.

         Here, 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 doubt:

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.

         Jury 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.

         Taken 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."

         Lankford 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.

         Lankford 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.[3]

         Idaho 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."

         Therefore, 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.

         C. The district court did not err by denying Lankford's request for a new trial based on the provisions of Idaho Code section 19-2405.

         Lankford 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 trial.

         1. Standard of Review

         Generally, "[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).

         This 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, 881 (1985).

         Such 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)).

         "This 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).

         2. 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.

         Lankford 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 misplaced.

         This 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.

         Under 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).

         Here, 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.

         3. Whether Idaho Code section 19-2405 prevented the district court from ...


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