828 P.2d 1304 (Idaho 1992), 18195, State v. Tolman

Docket Nº:18195, 18545.
Citation:828 P.2d 1304, 121 Idaho 899
Opinion Judge:BAKES, Chief Justice. BISTLINE,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Donald Marvin TOLMAN, Defendant-Appellant.
Attorney:Van Bishop Law Offices, Canyon County Public Defender, Debra Ann Orr, argued, Nampa, for defendant-appellant. Larry J. EchoHawk, Atty. Gen., Michael J. Kane, argued, Boise, for plaintiff-respondent.
Judge Panel:BOYLE and McDEVITT, JJ., concur. BISTLINE, Justice, dissenting.
Case Date:March 31, 1992
Court:Supreme Court of Idaho

Page 1304

828 P.2d 1304 (Idaho 1992)

121 Idaho 899

STATE of Idaho, Plaintiff-Respondent,


Donald Marvin TOLMAN, Defendant-Appellant.

Nos. 18195, 18545.

Supreme Court of Idaho, Boise.

March 31, 1992

Page 1305

[121 Idaho 900] Van Bishop Law Offices, Canyon County Public Defender, Debra Ann Orr, argued, Nampa, for defendant-appellant.

Larry J. EchoHawk, Atty. Gen., Michael J. Kane, argued, Boise, for plaintiff-respondent.

BAKES, Chief Justice.

Defendant appellant, Donald Marvin Tolman (Tolman), appeals from convictions of two counts of lewd and lascivious conduct and one count of sexual abuse. Tolman also appeals from the district court's denial of his motion to reduce his sentence.

Tolman was charged with two counts of lewd conduct involving two different boys under sixteen. Tolman was also charged with the separate crime of sexual abuse of a third boy under sixteen. Tolman moved to sever the sexual abuse count from the two lewd conduct counts. The district court denied the motion, concluding that Tolman had failed to show unfair prejudice and that evidence of the sexual abuse count could properly be admitted in the trial of the lewd conduct counts. The following factual or procedural events which occurred at trial form the basis for the issues Tolman raises on this appeal.

Prior to trial, the trial court advised the jury that the defendant was charged with lewd conduct and sexual abuse of minors. The prosecutor asked during voir dire if any of the potential jurors knew anyone who had been molested as a child. Two jurors acknowledged that they did and, while they were not removed for cause, they were removed by the defendant's peremptory challenges. A third juror, Mr. Stone, on the second day of trial, advised the court that his wife had been abused. 1

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[121 Idaho 901] After the court and counsel questioned Mr. Stone, the court decided not to remove him because it found no evidence that Stone would have been removed for cause, that he was unable to perform his duties as a juror, or that his non-disclosure tainted the voir dire process. The defense objected to Mr. Stone's continuing, claiming that he, like the other two jurors, would have been peremptorily challenged had he been forthcoming with the information at voir dire.

In another assertion of error, Tolman argues that at trial, one of the jurors asked the court if they could question the witnesses. The court advised the jurors that they could ask questions of witnesses by submitting written questions to the court. The defense objected to the procedure out of the presence of the jury, but the court overruled the objection on the basis that "better communication between people who are receiving information is enhanced by a two-way communication." Only one juror submitted a question at trial, to which the state objected. The court ruled that the question could not be answered, but did not inform the jury whether it was the state or the defense who had objected to the question. Tolman claims that the jury could therefore have inferred that he was the one who prevented them from hearing the evidence.

In a separate case, Tolman had been charged with committing a prior sexual act with the same victim as that listed in Count I of the information in this case. A few days prior to commencement of this trial, Tolman was acquitted of that charge. In this case, the court prohibited any reference to the defendant's acquittal, to which the defense objected, claiming that evidence of the acquittal would be relevant both to impeachment and to the credibility of the witness. The court disagreed, holding that the acquittal may have been entered for reasons other than credibility of the victim.

In still another questioned ruling, the court admitted evidence of prior uncharged sexual acts between the defendant and each of the three victims on the theory that the prior acts were relevant to show a common scheme or plan. During the defense cross-examination of one of the victims, he testified that one of the uncharged incidents, the Swan Falls incident, occurred after the incident charged in the information. Tolman moved for a mistrial. The court denied the motion and instructed the jury to disregard the testimony regarding the subsequent Swan Falls incident.

The jury ultimately found Tolman guilty on all three counts. The court sentenced Tolman to a fixed period of ten years followed by an indeterminate term not to exceed life imprisonment on Count I; to a fixed period of fifteen years, followed by an indeterminate period of confinement not to exceed life on Count II; and to a fixed period of ten years, followed by an indeterminate period of confinement not to exceed five years on Count III, the three sentences to run concurrently. Tolman filed a I.C.R. 35 motion seeking a reduction of his sentence; the court reviewed the recommendations of the Department of Corrections and denied the motion. Tolman appeals his convictions and the denial of his motion to reduce his sentence.

On appeal, Tolman argues the trial court erred by: (1) refusing to declare a mistrial when one of the jurors failed to reveal that his wife had once been sexually molested; (2) admitting testimony of prior uncharged sexual acts; (3) allowing the jurors to question the witnesses; (4) refusing to allow evidence of Tolman's acquittal in a prior case; (5) failing to sever count III from

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[121 Idaho 902] counts I and II; and, (6) failing to reduce Tolman's sentence.

With regard to the first issue, Tolman argues that the trial court erred by failing to declare a mistrial when juror Stone failed to reveal during voir dire by the prosecuting attorney that his wife had been sexually molested as a child. Tolman claims that had Stone been forthcoming with that information, he would have been peremptorily challenged, just as two other jurors with similar revelations were. Tolman argues that under the circumstances, he was denied the full freedom to exercise his peremptory challenges. We disagree.

A motion for mistrial is directed to the sound discretion of the trial court, and its ruling will not be disturbed absent showing an abuse of discretion. State v. Talmage, 104 Idaho 249, 658 P.2d 920 (1983). In McDonough Power Equipment v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), the Supreme Court addressed a claim similar to that which Tolman urges today. In McDonough, a juror failed to affirmatively respond to a question during voir dire as to whether he or any of his family members or relatives had ever sustained an injury resulting in some disability. Only after a three week trial had ended did defense counsel learn that the juror's son had been so injured. The Court held:

To invalidate the result of a 3-week trial because of a juror's mistaken, though honest, response to a question, is to insist on something closer to perfection than our judicial system can be expected to give. A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination.... We hold that to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.

464 U.S. at 555-556, 104 S.Ct. at 849-850 (emphasis added). 2

The McDonough case sets forth the appropriate standard to be applied in this situation. Assuming that Stone failed to answer honestly a material question, our inquiry then becomes whether a correct response by Stone "would have provided a valid basis for a challenge for cause." Under I.C. § 19-2019, Stone would have been subject to removal for cause only if he had displayed "the existence of a state of mind ... in reference to the case, or to either of the parties, which, in the exercise of a sound discretion on the part of the trier, leads to the inference that he will not act with entire impartiality, and which is known in this code as actual bias."

The record shows that Stone was thoroughly questioned by the court and by counsel concerning any possible effect that his wife's molestation would have on his consideration of the case. Stone repeatedly stated that he would be fair and did not think his wife's molestation would affect his judgment in any way. The trial court concluded that Stone was not prejudiced and remained qualified to serve as a juror. That decision was within the trial court's discretion and the court's decision not to declare a mistrial on that basis was not an abuse of discretion. State v. Talmage, 104 Idaho 249, 658 P.2d 920 (1983). 3

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[121 Idaho 903] Next, Tolman contends that the trial court erred in permitting evidence of prior uncharged crimes to go to the jury. Tolman argues that the testimony relating to the uncharged incidents does not fall within the exceptions listed in I.R.E. 404(b) and that the prejudicial impact of such evidence substantially outweighed its probative value.

At trial, the court admitted evidence, over defendant's objections, of prior uncharged sex acts between the defendant and each of the three victims. With regard to J.H., Count III charged Tolman with sexual abuse, that allegedly occurred while J.H. and Tolman were alone in Tolman's house. Prior testimony was admitted relating to similar misconduct in an old, burned down house, with none present save Tolman and J.H., and yet another incident that occurred while J.H. and his brother T.H. were camping with Tolman.

Regarding the victim, D.P., Count II...

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