Opinion No. 25
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.
judgment of the district court is affirmed.
D. Fredericksen, State Appellate Public Defender, Boise, for
Appellant. Elizabeth A. Allred argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for
Respondent. Kenneth K. Jorgensen argued.
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
FACTS AND PROCEDURAL BACKGROUND
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.
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.
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
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.
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.
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.
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.
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.
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
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.
Standard of Review.
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,
review includes a three-prong inquiry wherein the defendant
bears the burden of persuading the appellate court that the
(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.
The district court's comment to the jury about
Johnson's prior trial and appeal did not constitute
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).
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.
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.
similarly. Commenting that a case was reversed and remanded
is not equivalent to disclosing a prior conviction.
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.
The district court did not reveal the outcome of the
previous trial but only stated there had been a previous
trial and appeal.
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
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.
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.
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.
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.
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.").
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.
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.
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.
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