United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. NYE, CHIEF U.S. DISTRICT COURT JUDGE
before the Court in Petitioner David Johnson's habeas
corpus matter is Respondents' Motion for Partial Summary
Dismissal, which is now fully briefed and ripe for
adjudication. Dkts. 9, 13, 15. The Court takes judicial
notice of the records from Petitioner's state court
proceedings, which have been lodged by the parties.
See Fed. R. Evid. 201(b); Dawson v.
Mahoney, 451 F.3d 550, 551 (9th Cir. 2006). Having
carefully reviewed the record, including the state court
record, the Court finds that the parties have adequately
presented the facts and legal arguments in the briefs and
record and oral argument is unnecessary. See D.
Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the
Idaho Supreme Court explained the background of the case as
David Leon Johnson, the appellant, was charged with three
counts of lewd and lascivious conduct with a minor under
sixteen pursuant to I.C. § 18-1508. He was charged for
offenses he allegedly committed against his daughter, A.J.,
who was between six and seven years old at the time of the
charged conduct. Mr. Johnson had a home in Paul, Idaho, with
his wife and five children at the time. The first two counts
allegedly occurred over the first weekend of spring break,
2004. Michelle Johnson, Mr. Johnson's wife at the time,
purportedly took the couple's children to Utah to visit
her parents but left A.J. behind with Mr. Johnson. A.J.
testified that while she was home alone with Mr. Johnson, he
molested her on two occasions. First, he allegedly touched
and penetrated A.J.'s genitalia with his hands, made A.J.
touch his penis manually until he ejaculated, and then forced
her to lick chocolate off of his penis. Second, Mr. Johnson
allegedly attempted to penetrate A.J. in the shower by
lifting her up and onto his penis. The third count alleged
that Mr. Johnson molested his daughter over the Memorial Day
weekend of 2005.
Lodging B-4, pp. 1-2 (first direct appeal).
2006 jury trial, Petitioner was convicted of the first two
counts of lewd conduct and acquitted of the third count.
State's Lodgings A-1, pp. 1-4; A-2, pp. 320-321. On
direct appeal, the Idaho Supreme Court agreed with Petitioner
that the trial court committed harmful error in admitting the
testimony of Petitioner's sister that he had sexually
molested her when he was a teenager. State's Lodging B-4.
The court vacated the conviction and remanded the case for a
remand, the trial court put into motion the procedures for a
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.
[On June 22, 2006, 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.
Lodging F-5, p. 3.
27, 2006, one week into voir dire, Defendant's counsel,
Mr. Roark, filed a motion in limine to preclude the attorneys
or witnesses 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.”
In camera, the Court, Mr. Roark, and the prosecutor, Mr.
Stevenson, discussed the following:
THE COURT: Back on record in chambers at 9:20 A.M. All
Mr. Roark, we took a quick look at your motion in limine, the
essence of which is to seek that there be no mention made of
the prior trial in this case. We crossed that bridge last
week with both these --with the supplemental questionnaires.
I told the panels when they were in that there had been a
prior trial; that on appeal, the Supreme Court had reversed
and remanded the case to this Court for trial and that I was
assigned to handle this case. So without meaning to and not
knowing that was your position, I went ahead and, I think --
did we make that disclosure in the proposed questionnaire?
MR. STEVENSON: The proposed jury instructions.
LAW CLERK: It was in the statement that you read, but it
wasn't part of the actual questionnaire.
THE COURT: Right, but we sent that questionnaire out to
LAW CLERK: Yes.
THE COURT: -- for review? And I can just, at this point,
without -- it's appropriate, I think, to talk about this
now, because one of the questions I usually ask during the
voir dire process is whether anybody's ever been or was
on the jury that tried this case previously or was a witness
or knew anybody that was a witness or had developed any
information from that case, so that was definitely a
direction I was going to go, but that bridge has been crossed
in that sense, that there has been disclosure made to these
folks that there was a trial and a reversal and a remand for
a new trial.
MR. ROARK: Well, I'm very concerned about that, because
the jury has, in effect, been told that my client has
previously been convicted.
THE COURT: They were told there was a prior trial and a
remand. The word “convicted” was never used.
MR. ROARK: The word “convicted” may not have been
used, but I don't know any reasonable inference that the
jury could otherwise draw.
THE COURT: How would you propose that we ever inquire as to
previous experience without ever disclosing that there was a
MR. ROARK: Well, I think it can be referred to as a prior
hearing in terms of what the witnesses have to do, and that
does not make it exceptional in terms of how we get around
preliminary hearings and grand juries. The jurors are made
aware that there was a preliminary hearing or there was a
grand jury proceeding and that there is prior testimony. This
is a different proposition. I mean, I was concerned,
certainly, with finessing that point, and I think that can
easily be done by calling it a prior hearing. It may be that
either side will want to impeach a witness with an
inconsistent prior statement. That would require them to
bring out the transcript. But, again, if that's referred
to as a prior hearing, I don't find that decidedly more
prejudicial than if they were bringing out a preliminary
hearing transcript or a grand jury transcript.
Here, however, the jury being told that this matter was once
tried and then went to the Supreme Court where it was
reversed, again, I think the only reasonable inference that
any but brain-dead jurors could take from that would be that
he's been convicted, and then that conjures up these
paradigms of technicalities and so forth. As far as your
question about how do find out whether or not these people
may have served on a prior jury, I think that that's
something that's relatively easy to do, because we ask:
"Have you served on a prior jury?" And I think it
would be very easy to say, "Have any of you had anything
to do with this case prior to today?" Again, that does
not require of them a commitment to the proposition that he
has been previously convicted. I don't see how we unring
THE COURT: Well, I think that we unring it because I sent the
script out before we ever came to this and asked for counsel
to object, and I didn't get any objections, and so based
upon that, I felt free to proceed with that script.
MR. ROARK: Well, perhaps it was because I've been in
trial. I did not see the script. I can't say that it was
not sent. I did not see the script. I certainly would have
objected had I been here. And I know that wasn't the
Court's fault. I was in jury trial. I couldn't avoid
that. I would have objected. I'm very concerned about
that, Your Honor.
THE COURT: Well, then, the opening comments to this panel
that I make always include the statement that he's been
charged; that he has pled not guilty; that the fact of a
filing is not evidence; that they shouldn't draw a
conclusion of guilt from the fact that a filing -- the point
being this is a brand-new day, and I think that that's
the way we have to proceed with it at this point is that this
is a brand-new trial. This is day one. My concern is a
further comment on it, then, if, in fact, there is prejudice
-- and I'm not presuming that there is, although I
understand the defense's concerns, any further comment on
it as a topic would only, I think, serve to highlight it, and
rather than that, by focusing on the fact that this is a
brand-new trial and that, at this point, this man stands
before them not guilty of anything, lets the jury know where
we are procedurally. I think that if there's any nuance
in any of the answers to any of the questions from any of the
jurors that somehow the appeal and the remand or the prior
proceeding has had any effect on them, I'll just go ahead
and excuse them at that point for that reason if
that's-unless counsel think that's a wrong reason to
do that. I'm not-I'm looking to both counsel here in
whatever order you'd like to respond to my thoughts.
MR. STEVENSON: I'm okay with that, Your Honor.
MR. ROARK: Well, I'm not going to object to that, and I
understand that this was inadvertent and could I see the
script, by the way, because I -
* * *
THE COURT: If we could find that file. It came out attached
to a minute order.
THE CLERK: What are you wanting?
THE COURT: There's a minute order that -- THE CLERK: That
you did last week?
THE COURT: Yes, that went out to counsel that talked about
this supplemental questionnaire proceeding.
(Clerk delivers script.)
MR. ROARK: Well, I appreciate that, Your Honor. As a
practical matter, I did not return to the state of Idaho
until about 8:00 P.M. on the 21st of June, and I
did not -- again, I did not see that minute order. I did see
the juror questionnaires later. As the Court knows, I was in
jury trial all of last week, so I certainly would have
objected to that. I think it is objectionable. I think it has
now tainted the jury to the extent that they have to
understand that the case went up and, as the language says,
it was reversed. There's also already been a conviction.
Consequently, this is not like -- I've had a lot of
experience with hung juries where you're trying a case
for a second time. More than once, I've tried cases for a
third time. That's much easier for both counsel to work
with because people were not convinced beyond a reasonable
doubt, but they were also not unanimous in finding the
defendant not guilty.
Here, the inference is that there was a jury of 12 who were
convinced beyond a reasonable doubt that he was guilty. And
another vexing part of that, of course, is that there's
already enough notoriety surrounding this case, as I think
the 11 questionnaires disclose, so -- although I know the
Court is going to deny my motion, given all of the time and
effort that has gone into this, I would move that this ...