State v. Johnson

• Court: United States State Supreme Court of Idaho
• Citation: 163 Idaho 412,414 P.3d 234
• Decision Date: 16 March 2018
• Docket Number: Docket No. 43822
• Parties: STATE of Idaho, Plaintiff-Respondent, v. David Leon JOHNSON, Defendant-Appellant.

163 Idaho 412
414 P.3d 234

STATE of Idaho, Plaintiff-Respondent,
v.
David Leon JOHNSON, Defendant-Appellant.

Docket No. 43822

Supreme Court of Idaho, Boise, November 2017 Term.

Filed: March 16, 2018

Eric D. Fredericksen, State Appellate Public Defender, Boise, for Appellant. Elizabeth A. Allred argued.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Kenneth K. Jorgensen argued.

BEVAN, Justice.

163 Idaho 416

A jury found David Leon Johnson ("Johnson") guilty of two counts of lewd conduct with a minor child under sixteen. Johnson appeals, arguing that the district court erred in multiple ways and that his convictions should be vacated. We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

On August, 24, 2005, Johnson was indicted on three counts of lewd conduct with a minor child under sixteen pursuant to Idaho Code section 18-1508. He allegedly committed these offenses against his daughter ("A.J."), who was between six and seven years old at the time of the charged conduct. The first two counts allegedly occurred over the first weekend of spring break in 2004. During this period of time, Michelle Johnson (his former wife) purportedly left town to visit her parents, leaving A.J. behind with Johnson. A.J. testified that while she was home alone with Johnson he molested her on two occasions. The third count alleged that Johnson molested A.J. over the Memorial Day weekend of 2005.

Johnson was tried on these allegations in July 2006 (the "first trial"), wherein he was convicted as to the first two counts and acquitted of the third. Johnson appealed his judgment of conviction to this Court, alleging the district court erred by admitting into evidence testimony that he molested his little sister when he was a teenager in contravention of Idaho Rule of Evidence 404(b). State v. Johnson , 148 Idaho 664, 667, 227 P.3d 918, 921 (2010). We agreed and found this error was not harmless, vacated his convictions, and remanded his case for a new trial. Id. at 671, 227 P.3d at 925.

In June of 2011 a new trial was held, with the jury again convicting Johnson of the same two counts he was convicted of in his first trial. Johnson was sentenced to a unified sentence of 15 years, with 5 years fixed, for each count. No notice of appeal was filed; however, after a successful post-conviction proceeding, a superseding judgment of conviction and order of commitment was entered allowing Johnson to appeal. A timely notice

414 P.3d 239

163 Idaho 417

of appeal was then filed from the superseding judgment of conviction.

Johnson advances several arguments in this appeal, namely that the district court erred by: (1) informing the jury pool about Johnson's first trial, depriving him of a fair trial; (2) denying his motion for mistrial after a detective improperly commented on Johnson's invocation of his right to remain silent; (3) denying his motion for a mistrial after a witness's memory was improperly refreshed; and (4) denying his motion for mistrial after the State committed a discovery violation. Johnson further alleges that the State committed prosecutorial misconduct by the detective commenting on Johnson's invocation of his right to remain silent at trial. If these alleged errors are individually harmless, Johnson also argues that when combined they amount to cumulative error.

II. ANALYSIS

A. The district court did not create an implied bias among the jury, depriving Johnson of a fair trial, by informing the jury there was a prior trial in which this Court reversed and remanded his case for a new trial.

Johnson argues he was denied due process and the right to a fair trial when the district court informed potential jurors there had been a previous trial in which his case was reversed and remanded by this Court. We hold this comment did not create an implied bias among the potential jurors that deprived Johnson of a fair trial.

The parties and the court met for a final pre-trial conference on June 6, 2011. During the conference Johnson's counsel requested that a jury questionnaire be used to aid in selection of the jury, and counsel submitted a proposed questionnaire to the court on June 7, 2011. On June 16, the district court entered a Minute Order Regarding Preliminary Jury Selection Proceedings (Minute Order) which informed counsel that the court would conduct "preliminary jury selection proceedings" and would "give verbal preliminary instructions and information about the charges in th[e] case." The court attached a written copy of the court's intended comments as Exhibit A to the Minute Order. The certificate of service on the Order indicates that it was served on counsel by facsimile on June 16. The Minute Order also allowed the parties to object to the court's intended comments by June 21; however, Johnson's counsel failed to object.

The court summoned jurors to complete the questionnaires, gave them preliminary instructions, and read them the information contained on Exhibit A, which included the following language: "There was a prior trial in this case in 2006. Following an appeal, the Idaho Supreme Court reversed and remanded the case to this court for a new trial." Defense counsel was not present during these hearings and therefore lodged no contemporaneous objection to the court's reading of the instruction.

At the start of trial Johnson filed a motion in limine requesting an order from the district court prohibiting the State from "[m]aking any reference to a prior trial in this case" and requesting, that to the extent that witnesses need to refer to the prior trial, that it be referred to as a "previous hearing in this case." The court immediately informed defense counsel that the jury panel had already been told that there was a prior trial and appeal during the jury questionnaire hearings, in the language of Exhibit A. Johnson moved to vacate the trial and summon new jurors who would not be informed of the prior trial. The trial court denied the motion to vacate, but did order that the parties not reference the prior trial in the presence of the jury, other than by reference to the "prior proceeding."

Johnson now contends that the court reading this statement to the jury set a tone of prejudice for the jury's first impression of the case; thus, the jury pool was impermissibly tainted and Johnson's constitutional right to be tried before an impartial jury was infringed.

1. Standard of Review.

As noted, the court provided counsel with its intended instruction containing the allegedly offensive statement in advance of trial. Johnson's counsel failed to timely object, either in writing or during the jury questionnaire

414 P.3d 240

163 Idaho 418

process. Therefore, this Court will review Johnson's alleged error on the basis of a fundamental error standard. State v. Perry , 150 Idaho 209, 227, 245 P.3d 961, 979 (2010).

Such review includes a three-prong inquiry wherein the defendant bears the burden of persuading the appellate court that the alleged error:

(1) violates one or more of the defendant's unwaived constitutional rights; (2) plainly exists (without the need for any additional information not contained in the appellate record, including information as to whether the failure to object was a tactical decision); and (3) was not harmless. If the defendant persuades the appellate court that the complained of error satisfies this three-prong inquiry, then the appellate court shall vacate and remand.

Id. at 229, 245 P.3d at 980.

2. The district court's comment to the jury about Johnson's prior trial and appeal did not constitute fundamental error.

Johnson argues the district court's comment regarding his prior trial is the equivalent of informing the jury that he was previously convicted, thus creating an implied bias among the jury violating his right to a fair trial. The question presented is whether the "mention of a prior trial and appeal is so extremely and inherently prejudicial that it would create an implied bias where the jury is not susceptible to rehabilitation through further questions." Id. In determining whether such an extreme situation exists, each case must turn on its own facts. Id. at 487, 399 P.3d at 814.

As this Court has noted many times, the right to a fair trial before an impartial jury is fundamental to both the U.S. Constitution and the Idaho Constitution. The Supreme Court of the United States has noted: It is elementary that a fair trial in a fair tribunal is a basic requirement of due process, and this Court has stated that the due process requirements of the Idaho Constitution require a trial by a fair and impartial jury. The impartiality of a juror may be challenged for actual or implied bias. Actual bias deals with the specific state of mind of an individual juror and is proved by questioning the juror as to whether he or she can serve with entire impartiality. Implied bias, however, conclusively presumes bias as a matter of law based on the existence of a specific fact.

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