State v. Santana, 24938.

• Citation: 14 P.3d 378,135 Idaho 58
• Decision Date: 16 August 2000
• Docket Number: No. 24938.,24938.
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Jose SANTANA, Defendant-Appellant.
• Court: Idaho Court of Appeals

14 P.3d 378

135 Idaho 58

STATE of Idaho, Plaintiff-Respondent, v. Jose SANTANA, Defendant-Appellant.

No. 24938.

Court of Appeals of Idaho.

August 16, 2000.

Review Denied December 11, 2000.

Wiebe Fouser, Canyon County Public Defenders; Thomas A. Sullivan, Deputy Public Defender, Caldwell, for appellant. Thomas A. Sullivan argued.

Hon. Alan G. Lance, Attorney General; Karen A. Hudelson, Deputy Attorney General, Boise, for respondent. Karen A. Hudelson argued.

SCHWARTZMAN, J.

Jose Santana appeals from his conviction and sentence for first degree murder and use of a deadly weapon. We affirm.

I. FACTS AND PROCEDURE

On October 16, 1994, at approximately 9:40 p.m., Jose Hernandez was shot in his abdomen with a rifle. A white car and a white van were observed speeding away from the scene. The white van had a "Camionetas Santana" business emblem on its side.¹

Officer Troy Evans of the Nampa Police Department arrived on the scene to find Hernandez still alive. Officer Evans asked Hernandez if he had been shot, to which Hernandez replied, "Yes." Hernandez was asked what his own name was and he replied, "Santana." Hernandez was asked who shot him and he said, "Santana." Hernandez was transported to a local hospital, but died from internal bleeding and organ damage during attempts to save his life. An autopsy of Hernandez revealed that he had cocaine and methamphetamine in his system.

The driver of the white car, Jose Coloca, eventually came forward to tell police that he was the driver and that Hernandez had been his passenger. He stated that on that night, they were followed by a white van that flashed its headlights until they stopped. Santana got out of the driver's side of the van, approached Coloca's car, engaged Hernandez in a conversation and requested that Hernandez step out of the car. Coloca testified that Santana was wearing a long brown coat, cowboy boots and a cowboy hat. Santana had medium length hair and a moustache. Through his rear view mirror, Coloca observed Santana and Hernandez engaged in, what appeared to be, a friendly conversation until he heard arguing. Coloca saw Santana reach into the passenger's side door of the van and pull out what looked like a rifle. Coloca heard a gunshot and Hernandez cry out; he immediately drove away, but watched through his rear view mirror as Santana's van drove away in the opposite direction.

Michael Krause, a resident of the vicinity of the shooting, heard the gunshot as he was watching television in his home. As Krause ran to the back door, he saw a white van speeding away. Upon exiting through the door, Krause almost ran into a Hispanic man who was wearing a dark colored, medium-length jacket and looked "fearful." Krause saw the man holding something that was long and rigid close to his body, under his coat. Before trial, Krause picked Santana's picture out of a valid photo line-up.

Santana was later apprehended in Las Vegas, Nevada. The state thereafter charged Santana with first degree murder, I.C. §§ 18-4001-4003, and use of a deadly weapon, I.C. § 19-2520. Santana entered a plea of not guilty and a jury trial was scheduled to begin on June 17, 1996. On that day, after jury selection had been completed, counsel for both parties met in chambers with presiding Judge Gutierrez to discuss some concerns with the previously conducted voir dire.

During voir dire, potential jurors were asked, "Have any of you, or any members of your immediate family ever been charged with a felony crime?" Juror S.O. did not raise her hand and was eventually passed for cause by the state. Neither party used a peremptory challenge and she was seated on the jury. The jury was sworn. Thereafter, Judge Gutierrez learned that S.O. had not revealed during voir dire that her husband was currently being prosecuted by the state for a felony offense. The state moved to disqualify S.O. for implied bias and the defense objected. The court denied the state's motion, but reopened voir dire—presumably to allow inquiry into the existence of actual bias.

The court allowed the parties to further voir dire S.O., who admitted that she knew her husband was being charged with a crime, but did not know what type. She stated that she was currently separated from him, but admitted that they still lived together with their children. She stated that she did not have any knowledge of the crime itself and that she did not respond to the court's inquiry the day before because she thought the charge against her husband was not a felony. The court refused to strike S.O. for cause, finding that she could remain impartial. However, Judge Gutierrez subsequently disqualified himself because of familiarity with members of the victim's family and the case was reassigned to Judge Weston.

The state renewed its objection to S.O. based upon implied bias. Santana objected because (1) Judge Gutierrez had already ruled on that motion; (2) S.O. was one of only two Hispanic persons on the jury; and (3) the third Hispanic panel member had already been peremptorily stricken by the state. Judge Weston granted the state's motion without reviewing S.O.'s prior voir dire testimony stating:

I don't need additional testimony. I think the fact that you've got a juror whose husband at this moment is being prosecuted by the State, I think that's sufficient and I'm going to excuse her. I am satisfied that this is not an effort to try to put her off because she is Hispanic or has a Hispanic surname. I'm satisfied that the State's motion not only is based on a prejudice but it's [sic] a well-taken motion.

The court then seated the sworn alternate juror, selected two more alternates and reswore the jury panel.

At trial, Santana testified on his own behalf and said that he was at the scene of the shooting on the night in question, but that it was his passenger, Frederico Ponce, who shot Hernandez. Santana testified that he did not approach Coloca's car; Ponce ran away after he shot Hernandez; and he himself drove away in the van.

During trial, Santana sought to admit the coroner's report as a public record showing that Hernandez had methamphetamine and cocaine in his system at the time of the shooting, but this evidence was excluded by the district judge who stated: "I find no [hearsay] exception that would allow it." During its closing, the state relied on Hernandez's dying declaration by arguing: "It was Santana who fired the shot ... and we know that because of Mr. Hernandez's dying declaration." The state also pursued this point by offering the following line of argument to the jury:

Ms. Cassidy (Santana's co-counsel) said in her closing argument that Santana didn't know Hernandez and Mr. Santana himself testified to that. If they didn't know each other, what did Hernandez do? Just make up a name? Now think about that. He said Santana shot me and he said it more than once. Santana, Santana. If they don't know each other, then why would he use the name Santana. What possible explanation is there? And think hard. There isn't one. There's no explanation.

The jury subsequently found Santana guilty of first degree murder and use of a deadly weapon. The district court sentenced Santana to an indeterminate life sentence for the first degree murder conviction, as required by I.C. § 18-4004, with twenty-five years fixed, enhanced by a ten-year indeterminate sentence for the use of a deadly weapon. Santana appeals.

II. THE DISTRICT COURT ERRED BY STRIKING S.O. FOR IMPLIED BIAS, BUT SUCH ERROR WAS HARMLESS AND DID NOT SUBJECT SANTANA TO DOUBLE JEOPARDY

A. Standard of Review

Where the construction and application of a statute presents pure questions of law, we exercise free review. Boman v. State, 129 Idaho 520, 525, 927 P.2d 910, 915 (Ct.App.1996). Furthermore, whether an appellant's prosecution complies with the constitutional protection against being placed in jeopardy twice is a question of law subject to free review. State v. Hansen, 127 Idaho 675, 678, 904 P.2d 945, 948 (Ct.App.1995).

B. Removing S.O. For Implied Bias and Resulting Harm

Both parties passed S.O. for cause during the jury selection process after initial voir dire. The empanelled jury was sworn. It then came to the state's and Judge Gutierrez's attention that S.O. failed to disclose at voir dire that her husband was currently being prosecuted in Canyon County for a felony, punishable by life in prison, after the panel was specifically asked about such matters. The state, with no peremptory challenges left to exercise, moved that S.O. be removed from the sworn jury panel for implied bias. The judge denied the state's motion after reviewing I.C. § 19-2020 and finding none of the listed grounds to be applicable. Judge Gutierrez, however, allowed the parties to reopen voir dire to further question S.O. to facilitate analysis of any potential actual bias under I.C. § 19-2019(2).

After the parties were allowed to re-question S.O., Judge Gutierrez determined that no actual bias existed and S.O. could remain fair and impartial. This decision was within the sound discretion of the trial court. I.C. § 19-2019; State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989). With Judge Weston then assigned to the case after Judge Gutierrez's recusal, the state revisited its motion to strike S.O. for implied bias—the functional equivalent of a motion to reconsider its previous motion. As stated previously, Judge Weston declined to open voir dire again or to review S.O.'s prior voir dire testimony; instead, he summarily found that S.O. should be excused because she was "a juror whose husband at this moment is being prosecuted by the State." Idaho Code § 19-2020 provides the legal grounds for finding implied bias, none of which encompass the instant situation. This code section further provides that a challenge for implied bias may be taken for the listed causes "and for no other." Idaho courts are, therefore, precluded from extending the permissible grounds for...