State v. Johnson
| Decision Date | 29 October 2002 |
| Docket Number | No. 27038.,27038. |
| Citation | 57 P.3d 814,138 Idaho 103 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Rick E. JOHNSON, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
John M. Adams, Chief Kootenai County Public Defender, Coeur d'Alene, for appellant. John M. Adams argued.
Hon. Alan G. Lance, Attorney General; William M. Loomis, Deputy Attorney General, Boise, for respondent. William M. Loomis argued.
This is an appeal from a judgment of conviction entered after a jury found Rick E. Johnson guilty of two charges of petit theft. Johnson argues that the magistrate court erred by making a remark to the jury that undermined Johnson's intended response to the State's evidence of an alleged confession. He also argues that the magistrate erred by overruling Johnson's objection to the prosecutor's comment in closing argument that Johnson had presented no evidence to support his theory of defense.
Johnson was charged with two counts of petit theft for allegedly stealing fabric softener from a store in Coeur d'Alene, Idaho, on January 8, 1999, and stealing a headlight from the same store on the following day. According to a store employee and the arresting police officer, Johnson made incriminating statements when he was apprehended.
Johnson's native language is German, and at the outset of his trial, an interpreter was present, conducting a verbatim translation of the proceedings for Johnson. During juror voir dire, both the prosecutor and defense counsel signaled that Johnson's language proficiency would be a significant issue in the trial, for they questioned the jurors about their experiences dealing with persons for whom English is a second language. During a recess before the presentation of evidence began, the magistrate spoke privately with the interpreter and with a district judge who had previously taken a guilty plea from Johnson, asking their perceptions of Johnson's ability to understand English. Based on these discussions, the magistrate concluded that a verbatim translation of all the proceedings was unnecessary. The magistrate informed counsel that Johnson would instead be allowed to ask the interpreter for a translation if there were particular statements he did not understand. Johnson objected to this decision.
After the jury returned to the courtroom, the magistrate informed the jury that a verbatim translation would no longer be conducted:
After the court, after viewing some evidence, talking to other individuals, including the interpreter, has come to the conclusion that a verbatim transcript—or a verbatim translation of these proceedings is not necessary. That Mr. Johnson understands English sufficient, that assistance of an interpreter is necessary, but not a verbatim translation of these proceedings. I've instructed Mr. Johnson that if he doesn't understand a particular word or phrase he can certainly ask the interpreter for that. Other than that, we're going to proceed without a verbatim translation.
During her opening statement, counsel for Johnson told the jury that the case was about "mistaken communications" arising from English not being Johnson's native language.
The State presented two witnesses. The first was Larry Banks, a loss prevention manager for the store. Banks testified that on January 8, 1999, he saw Johnson steal clothing softener but did not stop Johnson on this occasion because the stolen item was inexpensive and Banks's time was better served elsewhere. Banks said that the next day he saw Johnson again enter the store. This time, Johnson walked out with a headlight for which he had not paid. Banks stopped Johnson and brought him back into the store. A police officer then arrived and questioned Johnson. Banks testified that during the officer's questioning, Johnson explained that he took the headlight because he did not have any money and also admitted to the theft of the clothing softener the day before. Banks said that Johnson had no difficulty communicating in English.
After the State concluded its direct examination of Banks, Johnson moved for a mistrial due to the magistrate's earlier comment to the jury regarding Johnson's English language skills. The magistrate denied the motion.
The State's second witness was the police officer who had arrested Johnson. He testified that when he questioned Johnson at the store, Johnson understood English. The officer said that Johnson admitted taking the headlight out of the store without paying for it but asserted that he was taking the headlight to his car to see if it would fit the vehicle.
After the State rested its case, counsel for Johnson asked to address the court outside the presence of the jury. Johnson's counsel informed the magistrate that Johnson would not be testifying, but would make an offer of proof. Johnson's counsel stated that one reason Johnson would not testify was because the magistrate had expressed an opinion to the jury regarding Johnson's proficiency in the English language. According to the offer of proof, Johnson had been in this country for about two months at the time of his arrest and would have testified that on that date, he did not understand English well and did not intentionally or knowingly make the admissions to which Banks and the police officer testified. The prosecutor then indicated that the State had a rebuttal witness who would have testified that Johnson did not have a problem communicating in English. The magistrate responded, "Well, I think the record's pretty clear as to Mr. Johnson's ability to understand English." Johnson did not present any evidence in his defense.
During closing argument, Johnson's counsel argued, "There's more to this case than meets the eye." In rebuttal argument, the prosecutor responded, Johnson objected to this statement on the ground that the statement was an improper comment on his exercise of the privilege against self-incrimination. The objection was overruled.
The jury thereafter found Johnson guilty of both counts of petit theft. Johnson appealed to the district court, which affirmed the judgment of conviction. He now appeals to this Court. He asserts error in the denial of his motion for a mistrial and in the ruling on his objection to the prosecutor's comment in closing argument.
Johnson argues that the magistrate court should have granted his motion for a mistrial because he was prejudiced by the court's communication to the jury that Johnson had a sufficient understanding of English so that a verbatim translation was unnecessary. Johnson argues that, as indicated in his offer of proof to the magistrate, he had intended to rebut the State's assertion that he admitted to the thefts by presenting his own testimony that he had difficulty communicating in English, that his statements had been misinterpreted by the officer and store employee, and that he had not knowingly made the admissions to which they testified. Once the magistrate informed the jury of his own view that Johnson possessed a good command of English, Johnson argues, it would have been futile for him to present this defense for, in the eyes of the jury, it would already have been rejected by the magistrate.
We begin our analysis of this claim of error by noting our standard of review. Idaho Criminal Rule 29.1(a) authorizes the declaration of a mistrial on the defendant's motion "when there occurs during the trial an error or legal defect in the proceedings . . . which is prejudicial to the defendant and deprives the defendant of a fair trial." When we review an order denying a mistrial motion, the question for our consideration is not whether the trial court reasonably exercised its discretion under the circumstances existing when the motion was made. Rather, we examine whether the event that brought about the motion for mistrial constitutes reversible error when viewed in the context of the entire record. State v. Atkinson, 124 Idaho 816, 818, 864 P.2d 654,...
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