State v. Moses

• Decision Date: 19 June 2014
• Docket Number: No. 41275.,41275.
• Court: Idaho Supreme Court
• Parties: STATE of Idaho, Plaintiff–Respondent, v. Joshua Michael MOSES, Defendant–Appellant.

156 Idaho 855

332 P.3d 767

STATE of Idaho, Plaintiff–Respondent,

v.Joshua Michael MOSES, Defendant–Appellant.

No. 41275.

Supreme Court of Idaho, Boise, February 2014 Term.

June 19, 2014.

Rehearing Denied Sept. 15, 2014.

Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Sarah E. Tompkins argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Jessica M. Lorello argued.

J. JONES, Justice.

Joshua Michael Moses appeals his conviction for grand theft by extortion. Moses contends the district court erred when it denied his mid-trial request to question a juror after the juror informed the court that he was suffering from anxiety and was unsure if he could continue participating on the jury. Moses also argues that the district court made errors in evidentiary rulings and that the prosecutor engaged in various forms of misconduct during closing argument. The Court of Appeals heard the appeal and vacated the judgment of conviction, remanding the case for a new trial. The State sought, and this Court granted, review.

I.BACKGROUND

On the morning of July 24, 2010, Walter Ward received a telephone call from his brother-in-law, Joshua Branam. During that call, Branam told Ward that he needed $2,500 or he would be killed. A third person got on the phone and told Ward that "it wasn't a joke, it wasn't some Hollywood bullshit, he wasn't messing around, and not to go to the police." In the course of these conversations, Ward was instructed to take the money to a local Wal–Mart parking lot. As directed, Ward took the money to the specified location and was met by the defendant, Joshua Moses. Ward recognized Moses' voice as that of the third person with whom he had spoken during the call. After giving Moses the money, Ward was directed to the entrance of a trailer park and, after a time, Ward saw Branam walking towards him.

Ward then went to the police. Subsequently, the State charged Moses with grand theft by extortion. The jury returned a guilty verdict and Moses appealed. The Court of Appeals vacated Moses' conviction in a 2–1 decision, holding that the district court erred when it refused to permit Moses to inquire of the juror who expressed reservations about his ability to "continue," given the anxiety he was experiencing. This Court granted the State's petition for review.

II.ISSUES ON APPEAL

I. Did the district court err in failing to permit or conduct inquiry of a juror who advised the court of anxiety issues during the course of the trial?

II. Did the district court err in allowing the State to introduce statements made by Branam as adoptive admissions by Moses?

III. Did the district court err in refusing to permit Moses to call a witness to testify about Branam's prior consistent statements?

IV. Did the prosecutor commit misconduct during closing argument by engaging in any or all of the following: shifting the burden of proof to Moses, arguing facts not in evidence, misstating the evidence, or appealing to the passions and prejudices of the jurors?

V. Should Moses' conviction be vacated under the cumulative error doctrine?

III.STANDARD OF REVIEW

"In cases that come before this Court on a petition for review of a Court of Appeals decision, this Court gives serious consideration to the views of the Court of Appeals, but directly reviews the decision of the lower court." State v. Oliver, 144 Idaho 722, 724, 170 P.3d 387, 389 (2007).

IV.ANALYSIS

A. Mid–Trial Juror Inquiry

While waiting for two jurors to report for duty on the second day of Moses' trial, the district court received a note from the bailiff. This note said that Juror 69 had told the bailiff he was "having anxiety issues" and was "not sure" he could "continue." With counsel present, the bailiff and the district court engaged in the following conversation:

The Court: Why don't we—would it help [Juror 69] if he were just by himself in a different jury room?

Bailiff: I didn't go into that, Judge.

The Court: Why don't you see if that would make him more comfortable while we wait and sort out where our other two jurors are?¹

Bailiff: Okay.

The Court: And we can certainly have another bailiff check that room. All right. Well, I guess we've got nothing to do for a while.

After a recess, but still out of the presence of the jury, the district court, the bailiff, defense counsel, and the prosecutor had the following conversation:

The Court: Juror Number 69 ... has anxiety issues and is having some difficulty with the back and forth and the contentious nature of the proceedings. I asked [the bailiff] to see if [Juror 69] had ... any suggestions on what might be done to minimize that. Did he come up with anything?

Bailiff: He did not, Judge

The Court: Okay. All right.

...

Defense Counsel: Your Honor, ... I would like to have a little more information on the juror that suffers with the anxiety to make sure that that's not something that is gonna prevent him from listening to every bit of the testimony. My concern is that if he's under an anxiety attack in the courtroom, he may not be hearing the testimony, and I want to—I don't know how to have the Court make sure that his anxiety is not gonna impact his ability to take in the testimony as it comes in.

The Court: What's the State's position, if any?

The State: This juror was passed by myself as well as counsel, and no one delved into these potential issues, probably because we didn't know about them, but he didn't bring them up.² He's not said anything to make anyone aware that he can't be fair and impartial in this case. I think to single him out and to question is gonna make a potential problem even worse, and basically we're worrying about something that we don't know if it happened or not, and I don't think we need to take a juror out and single him out and start asking him questions.

The Court: All right. Well, I am going to simply announce to the entire panel that if anybody feels at any time that they do need a break, to please bring that to the Court's attention, but otherwise, I'm not going to inquire further of ... Juror Number 69.

Once the jury was seated, the court "reminded" the jurors that "if for any reason you feel that you need to have a recess, get my attention, get [the bailiff's] attention, and we will immediately recess. Everybody clear on that? All right." The issue was not raised again during trial.

Moses argued in his opening brief on appeal that the district court erred in preventing him from "questioning the juror about the nature, frequency, effects, and extent of the panic attacks he was suffering during the trial." In his reply brief, Moses makes the more general argument that he "has the right to some form of hearing in order to determine the juror's fitness to continue" and asserts that the district court erred by failing "to conduct any further enquiry at all" of Juror 69. Regardless of how the issue is phrased, the district court committed no error.

It should first be noted that Moses' counsel did not request that she be allowed to inquire of the juror. Further, the district court did not prevent counsel from asking for or making any inquiry. Rather, counsel asked for "a little more information" regarding Juror 69 and then said she did not know "how to have the court make sure that his anxiety is not gonna impact his ability to take in the testimony as it comes in." And, there is no indication in the record that the juror was suffering "panic attacks." Nevertheless, we first consider whether Moses had a right to question the juror.

The Idaho Constitution states that "[t]he right of trial by jury shall remain inviolate." ID CONST. art. I, § 7. That a jury be "impartial," as "guaranteed by the Sixth Amendment of the United States Constitution, is made applicable to the individual states through the Fourteenth Amendment." State v. Brooks, 103 Idaho 892, 896, 655 P.2d 99, 103 (Ct.App.1982) (citing Parker v. Gladden, 385 U.S. 363, 364, 87 S.Ct. 468, 470–71, 17 L.Ed.2d 420, 423 (1966) ; State v. Beason, 95 Idaho 267, 506 P.2d 1340 (1973) ). "In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors." Id. (citing Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755–56 (1961) ). "The failure to accord an accused a fair hearing violates even the minimal standards of due process." Irvin, 366 U.S. at 722, 81 S.Ct. at 1642, 6 L.Ed.2d at 755–56. Thus, "the Due Process Clause protects a defendant from jurors who are actually incapable of rendering an impartial verdict, based on the evidence and the law." Peters v. Kiff, 407 U.S. 493, 501, 92 S.Ct. 2163, 2168, 33 L.Ed.2d 83, 93 (1972). To be capable, a juror must be "mentally competent to afford a hearing." Jordan v. Com. of Massachusetts, 225 U.S. 167, 176, 32 S.Ct. 651, 652, 56 L.Ed. 1038, 1042 (1912).

It follows that "the right of a party to know whether a juror is qualified and competent is a substantial right that cannot, under our law, be denied." U.S. v. Alexander, 2 Idaho 386, 392, 17 P. 746, 749 (Idaho Terr.1888). Voir dire is the process by which the court or parties examine potential or sitting jurors for competence. I.C.R. 24(b). It presents the opportunity to test "the qualifications of the juror" and "to discover the possible existence of a ground for challenge." I.C.R. 24(b). "The right given to challenge for cause carries with it the right to examine for cause, or have the court do so." Alexander, 2 Idaho at 392, 17 P. at 749. The requirement of an impartial jury does not end once the jury is empaneled. "If at any time a juror dies or becomes ill, or upon other good cause shown to the court that the juror is found to be unable to perform jury duty ... the court may order the juror to be discharged ..." I.C.R. 24(d)(3).

Although voir dire is generally completed at the beginning of a trial, it may later be reopened at the trial court's discretion.

State v. Leavitt, 116 Idaho 285, 289, 775 P.2d 599, 603 (1989) ; 47 Am.Jur.2d Jury § 171 ("...