State v. Hartwig

• Decision Date: 26 January 1987
• Docket Number: 15719,Nos. 15718,s. 15718
• Citation: 112 Idaho 370,732 P.2d 339
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Merlyn Dean HARTWIG, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 339

732 P.2d 339

112 Idaho 370

STATE of Idaho, Plaintiff-Respondent, v. Merlyn Dean HARTWIG, Defendant-Appellant.

Nos. 15718, 15719.

Court of Appeals of Idaho.

Jan. 26, 1987.

Danny J. Radakovich, Lewiston, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

Following his arrest by a Lewiston police officer, Merlyn Hartwig was found guilty by a jury of driving under the influence and of resisting an officer. In his appeal from the judgments of conviction Hartwig asserts that the district court erred (1) in denying Hartwig's challenge to an unusual jury selection process employed in his case; (2) in denying the suppression of verbal communications made by Hartwig during sobriety tests administered before his arrest; (3) in admitting evidence of the results of Hartwig's intoximeter test; (4) in instructing the jury concerning the elements of a charge of driving under the influence; and (5) in instructing the jury concerning an arrestee's right to resist the use of excessive force by an arresting officer. We agree with Hartwig's challenges to the jury selection process and to the instruction regarding an arrestee's right to resist a police officer's use of excessive force. We reverse both judgments and remand this case for a new trial.

Late one evening in April, 1984, a Lewiston police officer stopped Merlyn Hartwig for a suspected driving under the influence violation. A second officer arrived at the scene a short time later. The officer who stopped Hartwig administered sobriety tests to Hartwig, and, based on Hartwig's poor performance, the officer decided to arrest Hartwig for driving under the influence of alcohol. As the officers were attempting to arrest Hartwig, an altercation occurred between Hartwig and the two officers. The officers testified that Hartwig had grabbed the tailgate of his pickup truck and refused to let go so that he could be handcuffed. According to Hartwig, however, his hand was merely on the tailgate when one of the officers hit him from behind. Hartwig testified that he then grabbed the tailgate to keep from falling, and that he never resisted the officers. During the incident between Hartwig and the officers, Hartwig was injured. As a result of this confrontation, Hartwig was charged with driving under the influence and also with resisting the officers.

In an attempt to alleviate a congested court calendar in the magistrate division, a district judge assumed jurisdiction over twenty-nine criminal cases, including Hartwig's. The district judge then set a simultaneous commencement date for Hartwig's trial and for the trials of four other defendants, all of whom were also charged with DUI. The judge ordered jury selection for the first of the five cases to begin on the designated date. Jury selection in each subsequent case would begin immediately after jury selection in the previous case, until juries had been selected for all five cases. The judge then set a later date and time for the actual trial in each case to begin.

Hartwig's attorney moved to quash the judge's order regarding the proposed jury selection process on the grounds that such a procedure denied Hartwig the ability to conduct a meaningful voir dire of the jury and impinged on Hartwig's right to challenge individual jurors. The district court denied the motion. A jury was then selected for Hartwig's case and for the other cases, except for one case which had been settled in the meantime. Because the juries had been selected from a single panel, some members of Hartwig's jury were also on the juries for the other three cases.

Hartwig's trial, the last of the four cases to be tried, was held twenty-four days after the jury had been selected. As a result of the jury selection process, five of the six jurors on Hartwig's jury had been jurors on at least one of the three prior DUI cases.

At trial, Hartwig objected to introduction of evidence concerning the results of the intoximeter test that Hartwig had been given the night of his arrest. Hartwig also objected to introduction of the results of those sobriety tests which had required Hartwig to verbally communicate with the officers. Hartwig also challenged two instructions by the district court. One instruction dealt with the elements necessary to establish guilt on a DUI charge. The other challenged instruction concerned Hartwig's right to resist excessive force used by an arresting officer. The jury found Hartwig guilty of both the DUI and the resisting arrest charges. We conclude that the jury selection process did violate Hartwig's right to select an impartial jury, thus necessitating a new trial on both charges. We also conclude that the court improperly instructed the jury regarding an arrestee's right to resist excessive force used by an arresting officer. We will discuss each of Hartwig's asserted errors in turn.

I The Jury Selection Process

A defendant is entitled to a jury that is impartial and indifferent. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); State v. Sanger, 108 Idaho 910, 702 P.2d 1370 (Ct.App.1985). The jury need not be composed of members wholly lacking initial impressions or opinions, but it must consist of members who can set aside their views and reach a verdict based on the evidence as presented in court. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). In selecting a jury, a defendant has the opportunity to conduct voir dire examination of the jury panel in order to develop information to help identify those potential jurors who are or may be so biased that the defendant's right to a fair trial may be abridged. In pursuit of this information, which may lead to the challenge of a potential juror, counsel are granted wide latitude in voir dire examination. State v. Camarillo, 106 Idaho 310, 678 P.2d 102 (Ct.App.1984). The scope of voir dire is a matter of discretion with the trial court, and, unless that discretion is abused, the trial court's decision will not be disturbed on appeal. Id. Here, we conclude that such an abuse of discretion did occur.

We are cognizant of the trial court's good intentions in its endeavor to alleviate a crowded court docket. However, we are convinced that the jury selection process here so eroded the voir dire procedure that Hartwig's counsel was effectively precluded from developing the information necessary to make well-considered challenges to the prospective jury members. In a more ordinary situation, a jury is selected immediately prior to trial. Here, twenty-four days elapsed between the selection of the jury and the defendant's trial. In that period, five of Hartwig's six jurors participated in cases involving other DUI charges. We acknowledge that prior service in a similar case, by itself, will not support a challenge for cause. United States v. Mutchler, 559 F.2d 955 (5th Cir.1977), modified, 566 F.2d 1044 (5th Cir.1978). Nor would such interim service necessarily result in disqualification based on implied bias. I.C. § 19-2020; United States v. Haynes, 398 F.2d 980 (2d Cir.1968). See also Holland v. State, 260 Ark. 617, 542 S.W.2d 761 (1976); Stott v. State, 538 P.2d 1061 (Okla.Crim.App.1975). We have reached our conclusion not on any indication of actual or implied bias, but rather on the trial court's improper limiting of voir dire. The trial court has a "serious duty" to determine actual bias when impaneling a jury. Dennis v. United States, 339 U.S. 162, 168, 70 S.Ct. 519, 521, 94 L.Ed. 734 (1950). We reason that an equal duty applies in determining implied bias. However, without adequate voir dire, guided by the trial court's discretion, neither actual nor implied bias will be brought to the surface and subjected to challenge by counsel. Nor will counsel be able to exercise a strategic or reasoned peremptory challenge. Here, the jurors sat on DUI cases in the interim between being selected for Hartwig's jury and the beginning of Hartwig's trial. Because of the selection process, any bias which may have arisen in that period would have been undiscoverable by either party or by the court without further voir dire examination. Under the circumstances of this case, we hold the trial court abused its discretion in scheduling the jury selection prior to trial without providing counsel an opportunity for further voir dire examination on the day of trial.

The state has presented to this Court a well organized argument asserting that Hartwig did not renew his objection to the jury selection process immediately prior to trial and is thus precluded from challenging the procedure on appeal. We have thoroughly reviewed the record and have concluded that Hartwig did sufficiently preserve the issue. Prior to trial Hartwig moved unsuccessfully to quash the order establishing the jury selection process. Hartwig pointed out that the process would deprive him of a meaningful voir dire and would also hinder his ability to challenge the jurors for implied bias. Hartwig's counsel asked for and was granted a continuing objection to the process. As four of the jurors were selected, Hartwig's counsel again noted that his acceptance of these members of the jury was subject to his previous objection. After the entire jury was selected, Hartwig's counsel again noted that his acceptance of the jury was subject to the prior objection. Admittedly, if Hartwig had restated his objection immediately prior to trial, perhaps the trial judge might have allowed additional voir dire about the interim jury service. Possibly, such a procedure would have remedied the need for reversal on this issue. However, that additional voir dire did not occur. In light of Hartwig's continuing objection to the jury selection procedure and the trial court's refusal to initially modify the procedure, we conclude that the issue was properly preserved for purposes of appeal.

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