State v. Hansen, 21114
| Decision Date | 26 October 1995 |
| Docket Number | No. 21114,21114 |
| Citation | 127 Idaho 675,904 P.2d 945 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Wayne Bruce HANSEN, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Alan G. Lance, Attorney General; Myrna A.I. Stahman, Deputy Attorney General, Boise, and Catherine L. Derden, Arkansas, argued, for respondent.
Wayne Bruce Hansen was charged with three counts of lewd and lascivious conduct with his stepdaughter. I.C. § 18-1508. During voir dire, the prosecution used ten of eleven peremptory challenges to exclude males from the jury. After the jury was sworn, Hansen challenged the empaneled jury claiming that the state's use of its peremptory challenges violated his constitutional rights pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Hansen moved to strike the jury panel and also moved for dismissal of the case on double jeopardy grounds. The state objected, contending that the Batson motion was untimely. The district court proceeded to hear Hansen's motions and granted his motion to strike the empaneled jury. However, the district court found that, because the jury was being discharged on Hansen's motion, Hansen waived his right to claim double jeopardy. The district court denied Hansen's motion to dismiss and reset the matter for trial.
Between the two trials, Hansen made a motion to reconsider the double jeopardy challenge, which was again denied by the district court. Another jury was then selected and the case proceeded to trial. During the trial, over objection by Hansen, the district court admitted evidence regarding prior uncharged sexual misconduct by Hansen. The jury found Hansen guilty of three counts of lewd conduct with a minor under sixteen. The district court sentenced Hansen to three concurrent unified terms of eighteen years, with six-year minimum periods of confinement.
Hansen now appeals from his judgment of conviction on two grounds. First, Hansen asserts that his judgment should be vacated because the district court erred in denying his motion to dismiss based on a violation of his double jeopardy rights. In the alternative, Hansen seeks to have the judgment vacated and the case remanded for retrial with an order excluding the evidence regarding Hansen's prior uncharged sexual misconduct. The state raises as an additional issue on appeal whether it was error for the district court to consider Hansen's Batson motion in the first trial due to its untimeliness.
At the first trial, Hansen moved to have the jury discharged and the case dismissed after the jury panel was sworn to try the case. Hansen alleged that the prosecution used its peremptory challenges to exclude males from the jury. Hansen argued that this was in violation of his constitutional rights pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
The state asserts that a Batson motion challenging the prosecutor's use of peremptory strikes must be made before the jury is sworn to try the case. The state argues that if the motion is made after the jury is sworn, it is untimely and the issue is then waived on appeal. Although we do not dispose of Hansen's case solely on this issue, we hold, for further guidance to the trial bench and bar, that the state is correct in this regard.
Although the Idaho appellate courts have not specifically ruled on the state's assertion, we note that the general rule in Idaho is that, "a challenge to the panel must be taken before a juror is sworn, and must be in writing, and must plainly and distinctly state the facts constituting the ground of challenge." I.C. § 19-2006. Further, a challenge to a jury panel or an individual juror because of errors or discrimination during the jury selection process must be made before the jury is empaneled. State v. Yon, 115 Idaho 907, 771 P.2d 925 (Ct.App.1989); State v. Ruybal, 102 Idaho 885, 643 P.2d 835 (Ct.App.1982). We have previously held that when a challenge to the jury is not raised in a timely fashion, we will not consider it on appeal, unless, the appellant can show that the error constituted fundamental error. Yon, 115 Idaho at 909, 771 P.2d at 927. The Idaho Supreme Court has adopted the following definition of fundamental error:
Error that is fundamental must be such error as goes to the foundation or basis of a defendant's rights or must go to the foundation of the case or take from the defendant a right which was essential to his defense and which no court could or ought to permit him to waive. Each case will of necessity, under such a rule, stand on its own merits. Out of the facts in each case will arise the law.
State v. Sarabia, 125 Idaho 815, 818, 875 P.2d 227, 230 (1994), quoting State v. Knowlton, 123 Idaho 916, 918, 854 P.2d 259, 261 (1989).
Other jurisdictions have specifically held that a Batson motion must be made before the jury is sworn or it is untimely and the issue is waived on appeal. Government of Virgin Islands v. Forte, 806 F.2d 73 (3rd Cir.1986); State v. Harris, 157 Ariz. 35, 754 P.2d 1139 (1988); State v. Peck, 719 S.W.2d 553 (Tenn.Cr.App.1986). We concur with the rationale in these jurisdictions in holding that a Batson motion must be made before the jury is sworn, or it is waived. The district court therefore erred in hearing Hansen's motion challenging the state's use of peremptory challenges. However, as a practical matter, no relief is available to the state on appeal in this case as a result of the district court's error.
The district court found that Hansen waived his double jeopardy rights by moving that the jury be discharged after it was empaneled. When reviewing a lower court's determination regarding the waiver of a constitutional right, we accept the district court's findings of fact if supported by substantial evidence; however, we freely review the court's application of constitutional requirements to the facts found. State v. Hoffman, 116 Idaho 689, 691, 778 P.2d 811, 813 (Ct.App.1989). See also State v. Fairchild, 121 Idaho 960, 964, 829 P.2d 550, 554 (Ct.App.1992).
After the jury was sworn in this case, Hansen's counsel stated: "I would move to strike the jury panel and to have the court order the dismissal of this case as jeopardy is now attached by swearing the jury." The district court granted the motion, in part, and discharged the jury, but denied Hansen's request for dismissal. Hansen claims that the district court subjected him to jeopardy twice for the same offense and thereby violated his constitutional rights.
Article 1, Section 13 of the Idaho Constitution provides: "No person shall be twice put in jeopardy for the same offense." Further, the Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, provides, "nor shall any person be subject for the same offense to be twice put in jeopardy of life and limb." Jeopardy attaches under these provisions when a jury is sworn. State v. Sharp, 104 Idaho 691, 693, 662 P.2d 1135 The general rule is that a defendant's motion for mistrial removes any bar by the double jeopardy clause of the Fifth and Fourteenth Amendments to retrial. An exception to the bar exists, however, when the defendant's motion is based on prosecutorial misconduct which was intended to provoke the defendant into moving for a mistrial.
[127 Idaho 679] 1137 (1983). The double jeopardy clauses were intended to prevent constant retrials by a state. Id. However, these protections are not limitless. The defendant in a criminal case waives the double jeopardy bar to retrial by moving for or consenting to a mistrial or similar disposition of the trial. As we previously stated:
State v. Fairchild, 121 Idaho 960, 963, 829 P.2d 550, 553 (Ct.App.1992) (citations omitted). See also, Sharp, 104 Idaho at 693, 662 P.2d at 1137.
Hansen contends that Fairchild and Sharp do not apply in this case because he did not move for a mistrial. There is no logical distinction, however, in reference to their import for double jeopardy purposes, between seeking a mistrial and requesting that a jury be stricken and the case dismissed. The district court properly applied the rule stated in Fairchild and Sharp in finding that Hansen's motion to discharge the jury waived his rights under the double jeopardy clauses, unless the prosecutor intended to provoke Hansen's motion.
The question then becomes whether the prosecutor goaded Hansen into making the motion at the first trial. The district court found that the prosecutor lacked the requisite intent to provoke a mistrial. The district court stated in part:
The prosecutor vigorously protested the timeliness of the Defendant's motion and zealously argued against a finding of purposeful discrimination. In addition the prosecutor's witnesses were available and he was ready to present the State's case.
The evidence in the record supports the district court's findings that the prosecution was ready to proceed to trial and did not intend to goad Hansen into moving for mistrial or other similar disposition of the case. The district court, therefore, did not err in denying Hansen's motion to dismiss on double jeopardy grounds.
Hansen argues that the district court erred in admitting evidence of prior uncharged misconduct under I.R.E. 404(b). He...
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