State v. Lewis
| Decision Date | 25 February 1993 |
| Docket Number | No. 18580,18580 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. George Frank LEWIS, Defendant-Appellant. Boise, December 1992 Term |
| Court | Idaho Supreme Court |
Alan E. Trimming, Ada County Public Defender, and Deborah A. Whipple (argued), Deputy Public Defender, Boise, for defendant-appellant.
Larry EchoHawk, Atty. Gen., and Michael A. Henderson (argued), Deputy Atty. Gen., Boise, for plaintiff-respondent.
Appellant, George Frank Lewis ("Lewis"), was convicted of the crime of lewd conduct with a minor under the age of sixteen, in violation of I.C. § 18-1508. He was sentenced to a fixed term of life in prison. On appeal, Lewis contends that he was tried for the crime of lewd conduct in violation of the Double Jeopardy Clause of the United States Constitution based upon the claim that a previous charge (knowingly transferring a bodily fluid containing the HIV virus, I.C. § 39-608) resulted in a mistrial and, according to Lewis, involved proof of the same conduct. In addition, Lewis contends that the district court erred in delaying his trial, selecting a jury from another county, allowing certain evidence and testimony to be presented to the jury, denying his motion for a new trial, and sentencing him to a fixed term of life in prison. For the reasons set forth below, we affirm the decision of the district court.
On June 11, 1989, a criminal complaint was filed against Lewis. In the complaint, the State alleged that Lewis had committed the crime of lewd conduct with a minor under the age of sixteen, in violation of I.C. § 18-1508. More specifically, the complaint stated that the conduct occurred in February of 1989, with a fifteen-year-old boy and involved the acts of Lewis performing oral sex and attempting to perform anal sex upon the boy, both with the intent to gratify Lewis' sexual desire. After a preliminary hearing held on June 13, 1989, an information was filed against Lewis on June 15, 1989. Lewis was arraigned on the charges and pled not guilty.
On September 19, 1989, the parties appeared at the time set for jury trial by the court. At this hearing, the court advised the parties that trial needed to be reset. Lewis requested a "trial as soon as possible." The court inquired as to certain dates, heard responses, and the parties finally On November 6, 1989, Lewis filed a motion to dismiss the information. Grounds for the motion were: (1) Lewis had been tried for attempting to transfer the HIV virus, "which contained the identical issue as in this matter;" and (2) the HIV charge ended in a mistrial, over Lewis' objections, and the State is now collaterally estopped from further proceedings. In support of the motion, Lewis cited "principles of res judicata and the 'double jeopardy' clause of the United States Constitution." During oral argument on this motion, counsel for Lewis discussed I.C. § 18-301, a statutory double jeopardy constraint.
[123 Idaho 339] agreed to set trial for November 20, 1989, at 9:00 a.m.
On November 7, 1989, the parties again appeared before the court. At the hearing, Lewis withdrew his November 6, 1989 motion to represent himself. In addition, the court discussed its concern about selecting a jury due to publicity, and whether jury selection in a county other than Ada County should be considered. Lewis requested that jury selection be from Ada County. The State requested that the jury be selected from another county. Finally, the court ruled that there be no mention of Lewis being HIV-positive. 1
On November 17, 1989, Lewis filed a motion in limine and a motion to suppress. Among other things, Lewis asked that the court not allow into evidence a statement made by Lewis to a police officer regarding his sexual preference, a videotape, testimony from an expert witness, and certain property that was seized from his apartment.
On November 20, 1989, the parties met in court for a status conference. At this conference, the court announced its decision to select a jury from another county, to which Lewis objected, stating his desire to go to trial immediately. The court responded that another trial was going on at the time, and it set jury trial for November 28, 1989. Finally, the court heard argument on Lewis' claim of double jeopardy.
Also on November 20, 1989, Marji Shepherd, Ada County Jury Commissioner, filed an affidavit stating that she interviewed seventy-six prospective jurors, asking them questions concerning their ability to be fair and impartial in the Lewis case, as well as their familiarity with Lewis, including the AIDS issue, through the media. In this regard, she stated that forty people said they could not be impartial, thirty-five said they could, and one was undecided. Jury Commissioner Shepherd also stated that, based upon her experience, it would be necessary to call at least 300 prospective jurors in Ada County in order to have a fair and impartial jury for Lewis, and that it would not be possible to sequester 300 prospective jurors.
On November 27, 1989, the court issued its decision on jury selection and Lewis' motion to dismiss. As to jury selection, the court decided to impanel a jury from another county pursuant to I.C. § 19-1816, due to the publicity of Lewis' HIV case, his HIV status not being relevant to this case, and the matters set forth in Jury Commissioner Shepard's affidavit. The court denied Lewis' motion to dismiss. In so doing, the court stated that if Lewis had been acquitted in the HIV case, the State would be collaterally estopped from proceeding in this case. However, since a mistrial was declared and there was no final judgment on whether Lewis and the victim had sexual contact, the court concluded that this prosecution was not barred. In addition, the court noted that I.C. § 39-608, the statute relating to transferring the HIV virus, does not require sexual contact or that the victim be under the age of sixteen.
On November 29, 1989, the parties again met in court to take up motions. At the hearing, Lewis filed an amended motion to On December 5, 1989, the sixth day of jury trial, the jury reached a verdict of guilty.
[123 Idaho 340] suppress. The amended motion to suppress, regarding all videotapes, writings, notes, and letters seized, cited the Fourth Amendment to the United States Constitution and article I, section 17 of the Idaho Constitution, and claimed that probable cause did not exist to support the warrant. Additionally, Lewis filed an affidavit stating that he did not consent to the May 5, 1989, search of his premises. The case proceeded to trial.
On January 19, 1990, Lewis filed a motion to reappoint August H. Cahill as defense counsel. 2 He also filed a motion for a new trial pursuant to I.C.R. 34 and I.C. § 19-2406, stating that "[n]ew evidence exists which substantially impeaches the credibility of the state's primary witness...." In support of this motion, Lewis filed an affidavit of Joie Hein. Mr. Hein stated that the victim could not have seen a certain videotape with Lewis on a certain day because Hein had borrowed that tape from Lewis' roommate on the day in question.
On January 29, 1990, a sentencing hearing was held. At the hearing, the court denied Lewis' motion to strike certain evidence in the presentence investigation report, and it sentenced Lewis to a fixed life term in prison.
On February 8, 1990, Lewis' roommate, Michael Carver, filed an affidavit. In his affidavit, Mr. Carver stated that he had lent the above-mentioned videotape to Joie Hein on the day the victim testified that he had watched it with Lewis.
On March 1, 1990, Lewis filed a notice of appeal. He appealed from the January 29, 1990 judgment pursuant to I.A.R. 11(c)(1).
On May 3, 1990, the parties met in court to argue the motion for a new trial. At the hearing, Lewis filed a motion to disqualify the presiding judge, and the parties agreed to continue the matter.
On May 23, 1990, Lewis filed a motion for reconsideration of sentence. The motion was made pursuant to I.C.R. 35.
On June 13, 1990, the court issued its decision and order denying the motion for a new trial. In denying the motion, the court cited State v. Drapeau, 97 Idaho 685, 551 P.2d 972 (1976), for the standard for granting a new trial based upon newly discovered evidence. Applying this standard, the court found, inter alia, that Lewis had not acted with due diligence to discover the new evidence because he had unrestricted access to Mr. Carver and Mr. Hein. In addition, the court found that the jury was properly selected from another county, commenting that there was no way to evaluate whether Boise-area people are more sensitized to gay issues.
We address the following issues:
I. Did the district court err in ruling that this case was not barred by the double jeopardy clause of the United States Constitution, U.S. Const. amend. V.
II. Did the district court abuse its discretion by continuing Lewis' trial?
III. Did the district court violate a constitutional right or abuse its discretion by selecting a jury from another county?
IV. Did the district court err in denying Lewis' motion to suppress evidence?
V. Did the district court correctly apply rules of evidence in admitting certain evidence at trial?
VI. Did the district court abuse its discretion by allowing the testimony of an expert witness?
VII. Did the district court abuse its discretion by denying Lewis' motion for a new trial?
VIII. Did the district court abuse its discretion by sentencing Lewis to a fixed term of life in prison?
We hold that the district court did not err in ruling that Lewis' prosecution for the crime of lewd conduct, I.C. § 18-1508 (1984) 3, was not barred by double...
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