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State v. Johnson

Supreme Court of Idaho

March 16, 2018

STATE OF IDAHO, Plaintiff-Respondent,
DAVID LEON JOHNSON, Defendant-Appellant.

         2018 Opinion No. 25

         Appeal from the District Court of the Fifth Judicial District of the State of Idaho in and for Minidoka County. Hon. Michael R. Crabtree, District Judge.

         The judgment of the district court is affirmed.

          Eric D. Fredericksen, State Appellate Public Defender, Boise, for Appellant. Elizabeth A. Allred argued.

          Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Kenneth K. Jorgensen argued.

          BEVAN, JUSTICE.

         A jury found David Leon Johnson ("Johnson") guilty of two counts of lewd conduct with a minor child under sixteen. Johnson appeals, arguing that the district court erred in multiple ways and that his convictions should be vacated. We affirm.


         On August, 24, 2005, Johnson was indicted on three counts of lewd conduct with a minor child under sixteen pursuant to Idaho Code section 18-1508. He allegedly committed these offenses against his daughter ("A.J."), who was between six and seven years old at the time of the charged conduct. The first two counts allegedly occurred over the first weekend of spring break in 2004. During this period of time, Michelle Johnson (his former wife) purportedly left town to visit her parents, leaving A.J. behind with Johnson. A.J. testified that while she was home alone with Johnson he molested her on two occasions. The third count alleged that Johnson molested A.J. over the Memorial Day weekend of 2005.

         Johnson was tried on these allegations in July 2006 (the "first trial"), wherein he was convicted as to the first two counts and acquitted of the third. Johnson appealed his judgment of conviction to this Court, alleging the district court erred by admitting into evidence testimony that he molested his little sister when he was a teenager in contravention of Idaho Rule of Evidence 404(b). State v. Johnson, 148 Idaho 664, 667, 227 P.3d 918, 921 (2010). We agreed and found this error was not harmless, vacated his convictions, and remanded his case for a new trial. Id. at 671, 227 P.3d at 925.

         In June of 2011 a new trial was held, with the jury again convicting Johnson of the same two counts he was convicted of in his first trial. Johnson was sentenced to a unified sentence of 15 years, with 5 years fixed, for each count. No notice of appeal was filed; however, after a successful post-conviction proceeding, a superseding judgment of conviction and order of commitment was entered allowing Johnson to appeal. A timely notice of appeal was then filed from the superseding judgment of conviction.

         Johnson advances several arguments in this appeal, namely that the district court erred by: (1) informing the jury pool about Johnson's first trial, depriving him of a fair trial; (2) denying his motion for mistrial after a detective improperly commented on Johnson's invocation of his right to remain silent; (3) denying his motion for a mistrial after a witness's memory was improperly refreshed; and (4) denying his motion for mistrial after the State committed a discovery violation. Johnson further alleges that the State committed prosecutorial misconduct by the detective commenting on Johnson's invocation of his right to remain silent at trial. If these alleged errors are individually harmless, Johnson also argues that when combined they amount to cumulative error.

         II. ANALYSIS

         A. The district court did not create an implied bias among the jury, depriving Johnson of a fair trial, by informing the jury there was a prior trial in which this Court reversed and remanded his case for a new trial.

         Johnson argues he was denied due process and the right to a fair trial when the district court informed potential jurors there had been a previous trial in which his case was reversed and remanded by this Court. We hold this comment did not create an implied bias among the potential jurors that deprived Johnson of a fair trial.

         The parties and the court met for a final pre-trial conference on June 6, 2011. During the conference Johnson's counsel requested that a jury questionnaire be used to aid in selection of the jury, and counsel submitted a proposed questionnaire to the court on June 7, 2011. On June 16, the district court entered a Minute Order Regarding Preliminary Jury Selection Proceedings (Minute Order) which informed counsel that the court would conduct "preliminary jury selection proceedings" and would "give verbal preliminary instructions and information about the charges in th[e] case." The court attached a written copy of the court's intended comments as Exhibit A to the Minute Order. The certificate of service on the Order indicates that it was served on counsel by facsimile on June 16. The Minute Order also allowed the parties to object to the court's intended comments by June 21; however, Johnson's counsel failed to object.

         The court summoned jurors to complete the questionnaires, gave them preliminary instructions, and read them the information contained on Exhibit A, which included the following language: "There was a prior trial in this case in 2006. Following an appeal, the Idaho Supreme Court reversed and remanded the case to this court for a new trial." Defense counsel was not present during these hearings and therefore lodged no contemporaneous objection to the court's reading of the instruction.

         At the start of trial Johnson filed a motion in limine requesting an order from the district court prohibiting the State from "[m]aking any reference to a prior trial in this case" and requesting, that to the extent that witnesses need to refer to the prior trial, that it be referred to as a "previous hearing in this case." The court immediately informed defense counsel that the jury panel had already been told that there was a prior trial and appeal during the jury questionnaire hearings, in the language of Exhibit A. Johnson moved to vacate the trial and summon new jurors who would not be informed of the prior trial. The trial court denied the motion to vacate, but did order that the parties not reference the prior trial in the presence of the jury, other than by reference to the "prior proceeding."

         Johnson now contends that the court reading this statement to the jury set a tone of prejudice for the jury's first impression of the case; thus, the jury pool was impermissibly tainted and Johnson's constitutional right to be tried before an impartial jury was infringed.

         1. Standard of Review.

         As noted, the court provided counsel with its intended instruction containing the allegedly offensive statement in advance of trial. Johnson's counsel failed to timely object, either in writing or during the jury questionnaire process. Therefore, this Court will review Johnson's alleged error on the basis of a fundamental error standard. State v. Perry, 150 Idaho 209, 227, 245 P.3d 961, 979 (2010).

         Such review includes a three-prong inquiry wherein the defendant bears the burden of persuading the appellate court that the alleged 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. If the defendant persuades the appellate court that the complained of error satisfies this three-prong inquiry, then the appellate court shall vacate and remand.

Id. at 229, 245 P.3d at 980.

         2. The district court's comment to the jury about Johnson's prior trial and appeal did not constitute fundamental error.

         Johnson argues the district court's comment regarding his prior trial is the equivalent of informing the jury that he was previously convicted, thus creating an implied bias among the jury violating his right to a fair trial. The question presented is whether the "mention of a prior trial and appeal is so extremely and inherently prejudicial that it would create an implied bias where the jury is not susceptible to rehabilitation through further questions." Id. In determining whether such an extreme situation exists, each case must turn on its own facts. Id. at ___, 399 P.3d at 814.

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. 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, and this Court has stated that the due process requirements of the Idaho Constitution require a trial by a fair and impartial jury. The impartiality of a juror may be challenged for actual or implied bias. 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. Implied bias, however, conclusively presumes bias as a matter of law based on the existence of a specific fact.

State v. Lankford, 162 Idaho 477, ___, 399 P.3d 804, 812 (2017) (internal quotations and citations omitted).

         Idaho Code section 19-2020 provides a criminal defendant can strike a juror for implied bias on any one of nine enumerated grounds and "for no other." We have consistently declined to expand the scope of Idaho Code section 19-2020 to include other grounds. Id. at ___, 399 P.3d at 814 (listing prior decisions). "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." Id. at ___, 399 P.3d at 812. This Court has not yet addressed this issue, id. at ___, 399 P.3 at 813 (declining to address the issue), and this case does not require that we do so, because here, as in Lankford, the trial court did not inform the jury that the defendant had been found guilty, or that he was convicted in the prior trial.

         The statement made by the trial court in Lankford was very similar to the district court's statement here. The Lankford trial court made the following statement to the jury during the course of voir dire:

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.

Id. This Court held this statement was not the equivalent of disclosing a prior conviction. Id.

         We hold similarly. Commenting that a case was reversed and remanded is not equivalent to disclosing a prior conviction.

         In Lankford, we held the disclosure of a prior trial and appeal did not create an implied bias because: (1) The district court did not reveal the outcome of the previous trial but only stated there had been a previous trial and appeal; (2) There was a 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; and (3) The court properly questioned the jurors whether their knowledge of the previous trial would cause them to have actual bias against the defendant and properly instructed the jurors that they must presume the defendant innocent regardless of his prior trial. Id. These factors are not exhaustive and their weight depends on the particular facts of a case. Id. However, given the factual similarities between the case at bar and Lankford, we find these three factors instructive in deciding this case.

          a. The district court did not reveal the outcome of the previous trial but only stated there had been a previous trial and appeal.

         The district court never mentioned a prior conviction or guilt. "Idaho law clearly distinguishes between the mention of a prior trial and a prior conviction." Id. at, 399 P.3d at 813 (citing State v. Watkins, 152 Idaho 764, 766, 274 P.3d 1279, 1281 (Ct. App. 2012). This Court has stated:

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.

Id. at ___, 399 P.3d at 814. See also Watkins, 152 Idaho at 766, 274 P.3d at 1281 (Ct. App. 2012) (mention of a "prior trial" and the "appeals court" was not the disclosure of a conviction requiring reversal). Applying these precedents, we find that the trial court's statement did not lead to implied bias among the potential jurors in this case.

         b. There was a discussion between counsel and the court about how to handle the issue of the previous trial and defense counsel did not object.

         Johnson's counsel failed to timely object to the district court's comments. Counsel was further given additional opportunities to ameliorate the problem through proposing a curative instruction or directing voir dire to the potential jurors regarding the prior trial. Counsel chose neither approach.

         In denying Johnson's motion to strike the jury panel, the district court attempted to alleviate further possible prejudice by instructing both parties to refer to the prior trial as "a prior proceeding or a prior hearing" in the presence of the jury. However, the court chose not to give any additional instruction to the jury after both counsel felt such a move could bring additional prominence to the issue and further taint the process. Even so, Johnson's counsel continued to maintain that the curative instruction was not enough and the entire venire should be stricken. We hold the trial court's approach was acceptable, and did not amount to fundamental error.

         As noted, the district court concluded that an instruction addressing the prior trial would likely draw attention to the issue and therefore add to the potential prejudice. Instead, it gave general instructions emphasizing the presumption of innocence prior to the start of voir dire, and again after the jury was sworn in. The court further instructed the jury to decide the case solely on the evidence presented in the courtroom. While the district court's granting a more specific instruction to disregard the comment may have given some protection from potential bias, the court's decision to avoid the risk, particularly at the urging of both counsel, was not erroneous. Cf. State v. Hatton, 95 Idaho 856, 860, 522 P.2d 64, 86 (1974) ("Where evidence is admissible for one purpose and inadmissible for another, the district court's failure to give a limiting instruction is not in itself a reversible error where such instruction was not requested.").

         Johnson's counsel also had the opportunity to explore and/or rehabilitate the potential bias held by the jurors by conducting detailed voir dire regarding the issue. State v. Laymon, 140 Idaho 768, 771, 101 P.3d 712, 715 (Ct. App. 2004) ("[T]he purpose of voir dire is to discover which, if any, of the potential jurors are unable to meet the demands such service requires."). As noted by the United States Supreme Court, the "long held . . . remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias." Smith v. Phillips, 455 U.S. 209, 215 (1982). Such bias was not self-evident on the record before the trial court, and counsel's decision not to question the jurors about the prior trial, albeit tactically supportable, precludes a finding that the jury panel was impliedly biased in this case. 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 (internal quotations and citations omitted). Given such opportunities, which counsel chose not to explore, the district court's advising the jurors of the prior proceedings did not create an extreme situation where "the jury is not susceptible to rehabilitation through further questions." Lankford, 162 Idaho at ___, 388 P.3d at 814. Therefore, we hold these facts do not constitute fundamental error.

         3. Even if Johnson could establish an implicit bias, he waived any claim that the jury was biased when he passed the jury for cause at the conclusion of voir dire.

         This Court has held passing a jury for cause at the conclusion of voir dire indicates a criminal defendant is satisfied with the final jury selected and waives any claim that the jury was biased or not impartial. State v. Pratt, 160 Idaho 248, 371 P.3d 302 (2016). In Pratt, during voir dire a prospective juror stated the following when asked if his relationship with the defendant would affect his ability to serve on the jury: "I don't know about this case, but I got in trouble awhile back and [for the] same thing that he's in trouble . . . for. That's how I know him." Id. The State then moved to excuse the prospective juror for cause. Id. After this juror was excused, the defendant moved for a mistrial arguing the entire jury panel was tainted by the excused juror's answer and could not serve impartially. Id. The district court denied the motion for mistrial. Id. The defendant then conducted his voir dire of the prospective jurors, and at its conclusion passed the jury for cause. Id. On appeal this Court held that by passing the jury for cause the defendant "waived any claim that the jurors were biased." Id.

         Johnson's counsel did examine the potential jurors during voir dire to determine if they could serve impartially. He asked numerous questions regarding the presumption of innocence and the standard of proof in a criminal case. Every juror questioned stated they understood the presumption of innocence and that the State needed to establish its case beyond a reasonable doubt. He asked additional questions including: if the jurors expected Johnson to testify; if they had ever been accused of something they did not do; if they believed children were entitled to softer treatment on cross-examination; if they believed children are more likely to tell the truth than adults; and would they want someone like themselves on a jury for their own trial. At the conclusion of voir dire ...

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