State v. Johnson

• Decision Date: 26 June 2008
• Docket Number: No. 33312.,33312.
• Citation: 188 P.3d 912,145 Idaho 970
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Sarah Marie JOHNSON, Defendant-Appellant.
• Court: Idaho Supreme Court

188 P.3d 912

145 Idaho 970

STATE of Idaho, Plaintiff-Respondent, v. Sarah Marie JOHNSON, Defendant-Appellant.

No. 33312.

Supreme Court of Idaho, Boise, May 2008 Term.

June 26, 2008.

Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Jason Curtis Pintler, Deputy State Appellate Public Defender argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K. Jorgensen, Deputy Attorney General argued.

BURDICK, Justice.

Appellant Sarah Marie Johnson was convicted of two counts of first-degree murder. Johnson appeals her conviction. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 2, 2003, Alan and Diane Johnson (the Johnsons) were shot and died in their home. Subsequently, the Johnsons' sixteen year old daughter, Sarah Johnson (Johnson), was charged with two counts of first-degree murder. A jury found Johnson guilty of first-degree murder of both Alan and Diane Johnson. The district court sentenced Johnson to concurrent life sentences, plus fifteen years under I.C. § 19-2520 for a firearm enhancement.

II. ANALYSIS

Johnson raises four issues on appeal. Johnson argues that because aiding and abetting was not charged in the charging document, the district court's instruction to the jury on aiding and abetting constructively amended the charging document and resulted in a fatal variance. Johnson also argues she was deprived of her constitutional right to a unanimous jury verdict because the district court did not instruct the jury it must unanimously agree on whether Johnson actually killed the Johnsons or whether she aided and abetted in the killing of the Johnsons. Finally, Johnson argues her constitutional rights were violated when the district court failed to remove a certain juror from the jury pool or obtain an unequivocal commitment that the juror would follow all of the court's instructions. We address each issue in turn.

A. Constructive Amendment and Variance

Johnson asserts that the charging document did not support a jury instruction on aiding and abetting, and that consequently, the jury instruction constituted an impermissible variance or a constructive amendment.¹ Whether there is a variance or constructive amendment is a question of law over which this Court exercises free review. See State v. Colwell, 124 Idaho 560, 565, 861 P.2d 1225, 1230 (Ct.App.1993).

A variance between the charging document and the verdict is fatal when "the record suggests the possibility that the defendant was misled or embarrassed in the preparation or presentation of his defense." State v. Windsor, 110 Idaho 410, 418, 716 P.2d 1182, 1190 (1985) (citing Berger v. United States, 295 U.S. 78, 82-84, 55 S.Ct. 629, 630-31, 79 L.Ed. 1314, 1318-19 (1935)). Johnson argues there is a variance because the facts the jury would have to find to convict Johnson of aiding and abetting differ from the facts alleged in the indictment. Johnson further argues this variance was fatal because it prejudiced her in the preparation and presentation of her defense.

A constructive amendment occurs when the charging terms of the charging document have been altered literally or in effect. United States v. Dipentino, 242 F.3d 1090, 1094 (9th Cir.2001). The constructive amendment doctrine springs from the Fifth Amendment right to indictment by a grand jury. See Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 272-73, 4 L.Ed.2d 252, 255-56 (1960). The Fifth Amendment right to an indictment by a grand jury is not a due process right that applies to the states through the Fourteenth Amendment. Branzburg v. Hayes, 408 U.S. 665, 688 n. 25, 92 S.Ct. 2646, 2660 n. 25, 33 L.Ed.2d 626, 643 n. 25 (1972). Nonetheless, the Idaho Constitution contains a provision with similar wording to the Fifth Amendment, on which the constructive amendment prohibition is based.² See Idaho Const. art I, § 8. The Idaho Court of Appeals has appropriately applied the constructive amendment analysis to this Idaho constitutional provision. See Colwell, 124 Idaho at 566, 861 P.2d at 1231.

Johnson argues that in Idaho the charging document must contain facts showing the defendant aided and abetted, and that the failure to charge aiding and abetting in the indictment was a violation of due process.

1. Idaho Code § 19-1430 and I.C.R. 7(b) are not in conflict.

Johnson asserts there was a constructive amendment because the jury was asked to determine whether the State proved an element not charged in the indictment. Johnson argues that aiding and abetting contains a separate mens rea element—a community of purpose in the unlawful undertaking—and a separate actus reus element— proof that the defendant participated in or assisted, encouraged, solicited, or counseled the crime. However, this argument overlooks Idaho's statutory abolition of the distinction between accessories and principals.

Idaho Code § 19-1430 provides:

Distinction between accessories and principals abolished.—The distinction between an accessory before the fact and a principal and between principals in the first and second degree, in cases of felony, is abrogated; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, shall hereafter be prosecuted, tried, and punished as principals, and no other facts need be alleged in any indictment against such an accessory than are required in an indictment against his principal.

Thus, Idaho, consistent with many other jurisdictions, has abolished the distinction between principals and aiders and abettors, and instead treats aiding and abetting as a theory under which first-degree murder can be proved and not as a separate offense or a crime of a different nature. See State v. Ayres, 70 Idaho 18, 25, 211 P.2d 142, 145 (1949) (holding the information charges one offense (involuntary manslaughter) and that it was sufficient to put defendant on trial upon either the theory that he was a principal or the theory that he was an aider and abettor); see also, e.g., United States v. Ginyard, 511 F.3d 203, 211 (D.C.Cir.2008) ("Aiding and abetting is not a separate offense; it is only a theory of liability—one ground upon which the jury may find him liable for the charged offense."); United States v. Smith, 198 F.3d 377, 383 (2d Cir.1999) (holding aiding and abetting is not a discrete criminal offense); Londono-Gomez v. Immigration & Naturalization Serv., 699 F.2d 475, 476 (9th Cir.1983) ("[T]he aiding and abetting statute does not define a separate offense but rather makes punishable as a principal one who aids or abets another in the commission of a substantive offense.").

However, Johnson argues the last clause of I.C. § 19-1430, which states that it is unnecessary to allege facts other than what is required in a charging document against a principal, is procedural, is in conflict with I.C.R. 7, and thus, is of no effect. Idaho Criminal Rule 7(b) provides that "[t]he indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged."

When a statute and rule "can be reasonably interpreted so that there is no conflict between them, they should be so interpreted rather than interpreted in a way that results in a conflict." See State v. Currington, 108 Idaho 539, 543, 700 P.2d 942, 946 (1985) (Bakes, J., dissenting).

Here, the statute and the rule, I.C. § 19-1430 and I.C.R. 7, can be reasonably interpreted so that there is no conflict between them. Idaho Criminal Rule 7(b) requires the charging document be "a plain, concise and definite written statement of the essential facts constituting the offense charged." Idaho Code § 19-1430 then provides that in the case of aiding and abetting, the "essential facts" are only those facts that are required in charging the principal. Thus, the rule and the statute can be reasonably interpreted so that there is no conflict between them.

Furthermore, even if a conflict did exist between I.C.R. 7 and I.C. § 19-1430, the statute would prevail. When there is a conflict between a statute and a criminal rule, this Court must determine whether the conflict is one of procedure or one of substance; if the conflict is procedural, the criminal rule will prevail. State v. Beam, 121 Idaho 862, 863, 828 P.2d 891, 892 (1992).

Although a clear line of demarcation cannot always be delineated between what is substantive and what is procedural, the following general guidelines provide a useful framework for analysis. Substantive law prescribes norms for societal conduct and punishments for violations thereof. It thus creates, defines, and regulates primary rights. In contrast, practice and procedure pertain to the essentially mechanical operations of the courts by which substantive law, rights, and remedies are effectuated.

Id. at 863-64, 828 P.2d at 892-93 (emphasis removed) (quoting Currington, 108 Idaho at 541, 700 P.2d at 944 (quoting State v. Smith, 84 Wash.2d 498, 527 P.2d 674, 676-77 (1974))). "[L]egislation is a constitutional exercise of the Legislature's power to enact substantive law [and] that legislation is to be given due deference and respect." In re SRBA Case No. 39576, 128 Idaho 246, 255, 912 P.2d 614, 623 (1995).

Johnson argues that although the first part of I.C. § 19-1430 is substantive, the last clause stating "no other facts need be alleged in any indictment against such an accessory than are required in an indictment against his principal," is procedural. However, the last clause pertains more than to the essentially mechanical operations of the courts; it is defining and regulating the mechanism for giving the defendant notice when that defendant committed a felony as an accessory. The statute abrogates the distinction between principals and accessories and mandates the defendant "be prosecuted, tried, and punished as [a] principal[]...." I.C. § 19-1430. A conclusion...