State v. Bryant
| Decision Date | 11 May 1995 |
| Docket Number | No. 21176,21176 |
| Citation | 127 Idaho 24,896 P.2d 350 |
| Court | Idaho Court of Appeals |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. William L. BRYANT, Defendant-Appellant. |
John A. Bradley, Burley, for appellant.
Alan G. Lance, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, and Catherine L. Derden, Little Rock, AR, argued for respondent.
William Bryant appeals from his judgments of conviction and the sentences he received after a jury found him guilty of aggravated assault, I.C. § 18-905(a); robbery, I.C. § 18-6501; kidnapping, I.C. § 18-4502; rape, I.C. § 18-6101(4); and infamous crime against nature, I.C. § 18-6605. Bryant contends that he was deprived of a fair trial by the district court's denial of his motion to change venue due to pretrial publicity and by the prosecution's failure to preserve exculpatory evidence. Bryant asserts a double jeopardy violation with respect to his conviction for aggravated assault. Bryant also alleges that the district court abused its discretion in sentencing. We vacate
the conviction and sentence for the crime of aggravated assault which we conclude was an included offense of the kidnapping as charged. In all other respects, we affirm the district court.
The charges against Bryant stemmed from an incident which took place in the early morning hours of February 4, 1993, near Declo, Idaho. The facts of the incident, as related in Bryant's testimony, differed significantly from the victim's (CT's) account with regard to who had initiated the contact and whether the sexual encounter between them had been consensual. At trial before a jury, Bryant claimed that he had parked his truck off the road and was working on it when CT pulled up next to him. Bryant testified that CT suggested that he get in her van to warm up. Bryant asserted that CT invited him to have sex and drove to find a better location.
According to CT's testimony, she was returning home after dropping her husband off at work. As she crossed Donner Bridge, CT noticed a truck behind her. The truck passed her in the drifting snow, then quickly stopped, forcing her to brake to avoid hitting the rear of the truck. CT testified that Bryant got out of the truck, approached her van, opened the door and forced his way into the van at gunpoint.
CT recounted that Bryant took her keys and briefly returned to his truck. CT then claimed that Bryant drove her van to the Raft River area where he forced her to perform fellatio, raped her and robbed her. At some point, the gun was fired in the van and a bullet was found embedded in one of the van's armrests. Bryant asserted that the gun was discharged while he was trying to take the gun away from CT, who was handling it. Bryant did not testify that CT tried to defend herself with the gun, but that she had picked it up to look at when it was no longer tucked into the waist of Bryant's jeans. CT testified that she had never touched the gun.
After an eight-day trial, the jury found Bryant guilty of aggravated assault, robbery, kidnapping, rape and infamous crime against nature. Bryant received the following sentences, all of which included an enhancement for use of a firearm under I.C. § 19-2520: eight to ten years for aggravated assault; eight to eighteen years for robbery; twenty to thirty years for kidnapping in the first degree; twenty to thirty years for rape; and five years fixed for infamous crime against nature.
On appeal, Bryant first challenges the district court's denial of his motion for change of venue. Bryant asserts that he was prejudiced by pretrial publicity, including "the publicity that might have been made in the victim's church." Bryant argues that because CT is widely known in the small county and is a member of the predominant religion in the county, of which Bryant is not a part, the district court should have granted a change of venue to assure Bryant a fair trial before an impartial jury.
Where it appears that the defendant actually received a fair trial and that there was no difficulty experienced in selecting a jury, the trial judge's refusal to grant a change of venue is not a ground for reversal. State v. Brooks, 103 Idaho 892, 896, 655 P.2d 99, 103 (Ct.App.1982), citing State v. Needs, 99 Idaho 883, 890, 591 P.2d 130, 137 (1979). In evaluating whether the trial court properly exercised its discretion in deciding to grant or deny a motion for change of venue, we consider the following:
[A]ffidavits indicating prejudice or an absence of prejudice in the community where the defendant was tried, testimony of the jurors at voir dire as to whether they had formed an opinion of the defendant's guilt or innocence based upon adverse pretrial publicity, whether the defendant challenged for cause any of the jurors finally selected, the nature and content of the pretrial publicity, and the amount of time elapsed from the time of the pretrial publicity to the trial itself. Publicity by itself does not require a change of venue.
State v. Needs, 99 Idaho at 890, 591 P.2d at 137. Keeping these considerations in mind, we examine Bryant's venue challenge.
Bryant sought to have venue changed from Cassia County after he received the state's supplemental response to discovery. The response identified 229 potential character witnesses who would testify that they knew CT and would vouch for her good character and reputation. In support of the motion, Bryant's trial counsel submitted an affidavit indicating that the list of character witnesses included a factual witness and one of the investigating officers. Trial counsel's affidavit further stated his belief that Bryant could not receive a fair trial where such a large number of people in the county's small geographical area were personally acquainted with the victim.
In support of the motion to change venue, Bryant cited State v. James, 767 P.2d 549 (Utah 1989). In denying the motion, the district court distinguished James wherein the extensive pretrial publicity had moved the entire community to become involved with the search of a missing child. The district court held that the publicity in Bryant's case was limited to a news release and a composite picture that had not been disseminated county-wide. The district court rejected Bryant's assertion that he would suffer from a religious bias because of a lack of evidence of any such bias. Additionally, the district court indicated that the prejudice asserted by Bryant in his motion would be better assessed after voir dire, at which time Bryant could renew his motion.
The record reflects that a larger than usual jury pool was called in this case and that none of the state's 229 potential witnesses were among the jury pool members. After review of the written answers to questionnaires completed by the jury pool members, counsel stipulated to the removal of six potential jurors. The district court conducted two days of voir dire and allowed counsel an opportunity to voir dire as well. The district court excused three potential jurors for cause, but denied defense counsel's request to strike four other potential jurors for cause.
Of those jurors challenged for cause, not one was objectionable because of an opinion formed as a result of pretrial publicity. One juror was excused because of his relationship with a local law enforcement officer, who had talked briefly about the case, although was not assigned to the case. At the end of voir dire, Bryant's counsel renewed the change of venue motion and refocused his argument. Trial counsel no longer relied on the negative impact of pretrial publicity. Counsel focused on the large number of persons called for jury duty who knew CT and who might, therefore, be predisposed to favor CT's testimony over Bryant's. The district court affirmed its denial of the motion.
According to the record, the district court had not questioned all of the available jury pool members when the jury was selected. After exercising his peremptory challenges, defense counsel voiced no further objection to the jury as seated. Therefore, it does not appear from the record before us that there was any difficulty in selecting a jury as Bryant's motion for change of venue alleged. Moreover, the record does not contain copies of the articles from the news releases or the composite, so that we can evaluate their prejudicial impact. Applying the criteria of Needs, we conclude that the district court did not err in denying Bryant's motion for change of venue.
Next, Bryant asserts that the district court should have dismissed the charges against him because the state failed to preserve evidence. Bryant specifically contends that, although the state elected not to test Bryant's gun for fingerprints, the state's mishandling of the gun effectively deprived Bryant of any opportunity to have CT's fingerprints lifted from the gun so as to impeach CT's credibility.
A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984), citing Brady v. Maryland, 373 U.S. 83, 87 In cases where allegedly exculpatory evidence is lost or destroyed, we apply a three-part test to determine whether a defendant's due process rights have been violated by the loss or destruction of such evidence. We examine: (1) the materiality of the evidence; (2) the prejudice to the defense caused by the loss or destruction of the evidence; and (3) whether the government was acting in good faith when it destroyed or lost the evidence. Paradis v. State, 110 Idaho 534, 716 P.2d 1306 (1986). However, it has since been held that failure to preserve evidence which is only potentially useful to the...
To continue reading
Request your trial
-
State v. Dopp
...116 Idaho 82, 91, 774 P.2d 252, 261 (1989), cert. denied, 493 U.S. 917, 110 S.Ct. 277, 107 L.Ed.2d 258 (1989); State v. Bryant, 127 Idaho 24, 28, 896 P.2d 350, 354 (Ct.App.1995). This constitutional obligation to preserve evidence is limited, however, to evidence that possesses an exculpato......
-
Flieger v. State
...general duty to gather evidence for the accused. State v. Reyna, 92 Idaho 669, 674, 448 P.2d 762, 767 (1968); State v. Bryant, 127 Idaho 24, 28, 896 P.2d 350, 354 (Ct. App. 1995); State v. Sena, 106 Idaho 25, 27, 674 P.2d 454, 456 (Ct. App. 1983). The government's duty to use earnest effort......
-
State v. Boehm
...245, 796 P.2d 121, 122 (1990).2. Due process The prosecutor does not have a general duty to collect evidence. State v. Bryant, 127 Idaho 24, 28, 896 P.2d 350, 354 (Ct.App.1995). Nor is there a "constitutional requirement that the prosecution make a complete and detailed accounting to the de......
-
State v. Boehm, 41594.
...Idaho 244, 245, 796 P.2d 121, 122 (1990).2. Due process The prosecutor does not have a general duty to collect evidence. State v. Bryant, 127 Idaho 24, 28, 896 P.2d 350, 354 (Ct.App.1995). Nor is there a “constitutional requirement that the prosecution make a complete and detailed accountin......