State v. Danson, 16642

• Decision Date: 14 December 1987
• Docket Number: No. 16642,16642
• Citation: 747 P.2d 768,113 Idaho 746
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Thomas H. DANSON, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 768

747 P.2d 768

113 Idaho 746

STATE of Idaho, Plaintiff-Respondent, v. Thomas H. DANSON, Defendant-Appellant.

No. 16642.

Court of Appeals of Idaho.

Dec. 14, 1987.

William J. Douglas, Deputy Public Defender, Post Falls, for defendant-appellant.

Jim Jones, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

Thomas Danson was found guilty by a jury, in the magistrate division, of using a telephone to annoy, intimidate and harass another person in violation of I.C. § 18-6710. ¹ A magistrate entered a judgment of conviction and sentenced Danson to 120 days in the county jail, with 80 days suspended. On appeal, the district court affirmed. Danson appeals from the district court decision, presenting five issues for our consideration: first, whether the magistrate erred by not excluding the principal complainant from the courtroom prior to that witness's testimony; second, whether Danson was denied a fair trial by that witness's attempts to inflame the jury; third, whether the prosecuting attorney contributed to the alleged inflammatory conduct; fourth, in light of the complaining witness's position as a magistrate judge, whether that witness's testimony regarding probable cause deprived Danson of a fair trial; and, fifth, whether the jury's verdict was supported by the evidence. We affirm.

The underlying facts may be summarized as follows. Danson retained Gene Marano, then a Coeur d'Alene attorney, as counsel in a number of matters. When Danson failed to pay a bill owed to Marano, Marano sued and obtained a default judgment. On the morning of May 11, 1984, three individuals accompanied by a police officer visited Danson's residence and executed upon the judgment by impounding a pick-up truck owned by Danson. Danson questioned their authority, but did not obstruct execution of the judgment.

Throughout the succeeding hours a number of phone calls were received at Marano's law office and at his home. During many of the calls the caller did not speak. Other calls included profane and, arguably, threatening statements. Marano contacted the police and subsequently filed a complaint. Danson was charged with violating I.C. § 18-6710. He denied having placed the phone calls. A jury found Danson guilty.

I

When Danson's trial commenced, Danson moved for exclusion of the witnesses pursuant to I.R.E. 615. The motion was granted. Although not clearly established by the record, apparently Marano was present in the courtroom prior to presenting his testimony. Danson asserts that the magistrate committed prejudicial error by permitting Marano to remain in the courtroom in violation of the exclusion order.

In State v. Ralls, 111 Idaho 485, 725 P.2d 190 (Ct.App.1986), we had occasion to examine Rule 615. There, we noted that exclusion is one means to reduce the possibility of a witness shaping his testimony to conform with or to rebut the prior testimony of others. The question whether to grant a motion to exclude witnesses is committed to the sound discretion of the trial judge. Id. Since granting or denying the request for exclusion is discretionary, it follows that permitting exceptions to or variations from an exclusion order also lies within the trial court's discretion, as does the nature of any sanction imposed for violation of the order. State v. Christensen, 100 Idaho 631, 603 P.2d 586 (1979). But see I.R.E. 615(a) and State v. Ralls, supra (regarding particular witnesses not subject to exclusion). Four methods of enforcing an exclusion order have been used by the courts: (1) citing the witness for contempt, (2) permitting comment on the witness's noncompliance in order to reflect on his credibility, (3) refusing to let the witness testify, and (4) striking the witness's testimony. 3 J. WEINSTEIN & M. BERGER, WEINSTEIN'S EVIDENCE p 615 (1982).

Here, the only indication in the record that Marano was present during the testimony of others is his response upon being asked to identify Danson. Marano responded: "Mr. Danson is present, where he's been pointed out before." The record contains no suggestion that Danson had objected to Marano's presence or that the magistrate had excepted Marano from the exclusion order.

As has so often been stated, error will not be presumed on appeal. In the absence of a showing of prejudice, a trial court's permitting a witness for the prosecution to testify after being present in the courtroom contrary to an exclusion order will not be deemed an abuse of discretion. State v. Oldham, 92 Idaho 124, 438 P.2d 275 (1968). Even under the federal rule, where exclusion of witnesses is mandatory upon a request, a violation of the rule does not lead to an automatic reversal. United States v. Warren, 578 F.2d 1058 (5th Cir.1978), on rehearing, 612 F.2d 887 (en banc), cert denied 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980). Compare State v. Roberts, 126 Ariz. 92, 612 P.2d 1055, 1057 (1980) ("[F]ailure to honor an exclusionary request is presumed prejudicial unless the absence of prejudice is clearly manifest from the record.")

As set forth in Oldham, the burden of proving error is on the appellant. See, e.g., State v. Lopez, 100 Idaho 99, 593 P.2d 1003 (1979). Here, Marano's testimony was preceded by that of two secretaries, who had received many of the phone calls, and by two of the gentlemen who had seized Danson's pickup under the writ of execution. Danson suggests that Marano's testimony mirrored that of prior witnesses and that Marano's facial and body expressions could be observed by the jury while those witnesses were testifying.

The appellant, Danson, has not indicated specifically how Marano's testimony may have been tainted by Marano's exposure in the courtroom to these earlier witnesses. The preponderance of Marano's testimony related to matters not overlapping or addressed by the previous witnesses. The record includes no indication that Danson objected to Marano's presence. Had Danson raised an objection, the trial court might have ruled that Marano was exempt from the order as "a person whose presence is shown by a party to be essential to the presentation of his cause." See I.R.E. 615(a). Given the lack of a showing of prejudice, and Danson's failure to seek any corrective measure from the trial judge, we hold that the trial court did not err by failing sua sponte to apply the exclusion order upon Marano.

II

We turn next to Danson's challenges to the content of Marano's testimony. He contends that Marano offered inappropriate testimony which inflamed the jury; that the prosecuting attorney "assisted" in the presentation of this testimony; and that--in light of Marano's position as a magistrate judge while testifying--a comment by Marano regarding probable cause was unfairly prejudicial. We begin by examining the allegedly inflammatory testimony.

A

On direct examination, and in response to a question regarding his state of mind after receiving a threatening phone call which Marano believed to have come from Danson, Marano testified:

Ah, I was a ... I was ... frightened is, I guess, is not a word that I use that often, I was a little bit scared because I had known Tom [Danson] to carry a gun. He'd been in my office, with a gun on, in the past. Ah, I also know from the social security disability matter, in talking to his physician, that he was a bit unstable.

Danson's objection to this testimony was sustained. Marano later characterized the phone calls as "threats." Danson's objection to the repeated use of the term "threat" was also sustained. Marano also recounted that once Marano's family became involved he "felt that it was time to get him [Danson] off the street." Danson also points to testimony wherein Marano described the impact of those phone calls upon his family, expressed the opinion that these phone calls were made by Danson, and volunteered hearsay regarding the similar conclusions of others.

Although sustaining Danson's objections to much of this testimony, the magistrate declined Danson's request to admonish the witness. Danson did not follow up the objections with motions to strike the testimony or for a mistrial, or with a request for specific instructions to the jury. Danson contends that the cumulative impact of Marano's testimony was to inflame the jury and deny him a fair trial. He refers us to cases applying the common-law rule of evidence before adoption of I.R.E. 403. See, e.g., State v. Marlar, 94 Idaho 803, 498 P.2d 1276 (1972); State v. Wilson, 93 Idaho 194, 457 P.2d 433 (1969). That rule, like I.R.E. 403, called for a balancing between the danger of unfair prejudice and the probative value of the offered evidence.

An accumulation of errors may require a reversal. State v. Campbell, 104 Idaho 705, 662 P.2d 1149 (Ct.App.1983). However, in this instance, the appellant has not pointed to any particular evidentiary ruling as being erroneous. Instead, Danson's argument centers upon the witness's allegedly argumentative, prosecutorial attitude and the trial court's failure to admonish the witness.

The decision whether to admonish a witness lies within the trial court's discretion and flows from his role as manager of the trial. See I.R.E. 611. The magistrate responded to Danson's admonishment request by stating: "Well, I think that a ... I think that you can protect your record by making appropriate objections at the appropriate time. We'll just leave it at that." Danson points to no additional objectionable statements by the witness after this ruling. We hold that the magistrate's responses were within his discretion. From our review of the record we are unable to say that Danson did not receive a fair trial.

B

Danson contends that the prosecuting attorney acted improperly by encouraging these inadmissible and prejudicial statements by Marano. In doing so, Danson asserts, the prosecutor failed in his duty to ensure that the defendant receive a fair trial.

A prosecutor has a...