IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No.39510

STATE OF IDAHO,

Plaintiff-Respondent,

MICHAEL PAUL ANDERSON,

Defendant-Appellant.

2014 Unpublished Opinion No.350

Filed: February 6,2014

Stephen W. Kenyon, Clerk

THIS IS AN TJNPUBLISHED

OPINION AI\D SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Richard D. Greenwood, District Judge.

Judgment of conviction and concurrent turified sentence of five years with one

year determinate for one count of aggravated assault and unified ten years with

one year determinate for second count of aggravated assault and enhancement,

affirmed.

Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy

Appellate Public Defender, Boise, for appellant. Kimberly E. Smith argued.

Hon. Lawrence G. Wasden, Attomey General; Jessica M. Lorello, Deputy

Attomey General, Boise, for respondent. Jessica M. Lorello argued.

GRATTON, Judge

Michael Paul Anderson appeals from the district court's judgnr.ent of conviction entered

upon a jury verdict finding him guilty of two counts of aggravated assault, Idaho code $$ lg901(b), l8-905(a), and a sentencing enhancement for the use of a deadly weapon in the

commission of a felony, I.C. $ 19-2520. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUNI)

Anderson was charged with two counts of aggravated assault based on allegations that he

threatened two store employees with a knife. During voir dire, one of the potential jurors,

Juror 12, stated that he worked as a deputy sheriff and that he oversaw Anderson,s housing unit.

Anderson moved the district court for a mistrial based on Juror l2's comments, which the court
denied. The district court later dismissed Juror 12 for cause. At the conclusion of the trial, the

jury found Anderson guilty of both counts of aggravated assault and a weapon enhancement for

use of a knife in the commission of the crime. The district court imposed a unified term of five

years with one year determinate for the first count of aggravated assault and a concunent unified

term of ten years with one year determinate for the second count of aggravated assault and the

weapon enhancement. Anderson timely appeals.

II.

ANALYSIS

Anderson claims that the district court erred by denying his motion for a mistrial based

on Juror l2's comments. In criminal cases, motions for mistrial are govemed by Idaho Criminal

Rule 29. 1 . A "mistrial may be declared upon motion of the defendan! when there occurs during

the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom,

which is prejudicial to the defendant and deprives the defendant ofa fair trial." I.c.R. 29.1(a).

Our standard for reviewing a district court's denial ofa motion for mistrial is well established:

[T]he question on appeal is not whether the trial judge reasonably exercised his

discretion in light of circumstanc€s existing when the mistrial motion was made.

Rather, the question must be whetler the event which precipitated the motion for

mistrial represented reversible enor when viewed in the context of the full record.

Thus, where a motion for mishial has been denied in a criminal case, the ..abuse

of discretion" standard is a misnomer. The standard, more accurately stated, is

one of reversible enor. our focus is upon the continuing impact on the trial of the

incident that triggered the mistrial motion. The trial judge's refusal to declare a

mistrial will be disturbed only if that incident, viewed retrospectively, constituted

reversible error.

State v. Urquhart, 105 Idaho 92,95,665 P.3d 1 102, I 105 (Ct. App. 1983).

A defendant must demonstrate prejudice when alleging a violation of his presumption of

innocence. state v. slater,l36 Idaho 293,301,32 p.3d 6g5, 693 (ct. App. 2001). As part ofthe

presumption of innocence, a criminal defendant is not compelled to attend trial in prison or jail

clothing as it could present a continuing interference with the presumption of innocence. 1d ; see

also Estelle v. williams,425 u.s. 501,504 (1976) (attaching significance to the clothing as a

constant reminder to the jury of the defendant's incarceration). This has been extended to the

appeaxance of defendants at trial in handcuffs or shackles. 1d. "Many jurisdictions have likewise

held or implied that informing the jury that a defendant is in jail is improper because it may raise

an inference of guilt." State v. Hanison, 136 ldaho 504, 506, 37 p.3d 1, 3 (Ct. App. 2001).
while refening to continued custody may be error, it does not present as high of a risk of

prejudice as dressing the defendant in prison clothing because it is a single point in time

statement rather than a continual reminder of the defendant's presence in custody. Id. at 507,37

P.3d at 4.

A juror's expression of his own opinion of the case during voir dire does not render the

juror impartial. "A juror is presumed to be impartial." state v. Ellington,l5l Idaho 53,69,253

P.3d,727,743 (201t).

[T]he Constitution presupposes that a jury selected from a fair cross

section of the community is impartial, regardless of the mix of individuaviewpoints actually represented on the jury, so long as tle jurors can

conscientiously and properly carry out their swom duty to apply the law to the

facts of the particular case.

1d (quoting Ross v. OHahoma,487 U.S. Sl, 86 (1988).

A response to voir dire questioning must have a lasting impact for there to be prejudice.

state v. Lrvmon, 140 Idaho 768, 771, 101 P.3d 7t2, 715 (ct. App. 2004). The purpose of voir

dire is to ascertain any knowledge or biases of veniremembers. This process generally

communicates the potential juror's bias or knowledge to the rest of the jury. This may reflect

poorly on the defendant, but removing the potential juror benefits the defendant. rn Lalnnon, in

response to the trial court's questioning, a potential juror stated: ..well, I think he's guilty

already. If he's guilty last week, he'll be guilty next week." Id. at76g,101 p.3d at 713. The

potential juror was removed, and the trial court issued a curative instruction. This Court

affrrmed the denial of a mistrial because '1here was no continuing impact on the trial." Id. at

771, 101 P.3dat715. seealsoEllington, l5l Idaho at68-70,2s3p.3dat742-44(statingthat

three potential jurors expressing opinions of the defendant's guilt was insuffrcient to overcome

the presumption that the jury was impartial, where the potential jurors did not sit on the jury

panel and the court instructed the impaneled jury to decide the case based only on the evidence

presented in the courtroom).

It is presumed that the jury obeys the trial court's insffuctions to disregard statements.

state v. Hedger, 115 Idaho 598, 601, 768 p.zd 1331, 1334 (1989). This presumption cm be

overcome with a showing that there is an "overwhelming probability,' the jury cannot follow the

instruction and the evidence is "devastating" to the defendant. state v. Hill,l4}Idaho 625, 631,

97 P.3d, 1014, 1020 (Ct. App.2004) (citingGreerv. Miiler,483 U.S. 756,766n.8 (1987)). In
Hill, the prosecutot referred to the defendant's custody in jail while questioning a witness. The

defendant objected. The trial court sustained the objection, denied the motion for a mistrial, and

directed the jury to disregard the statement. This Court stated:

[T]he prosecutor's disclosure to the jury that [the defendant] had been in jaiJ

could hardly be characterized as "devastating." Given that [the defendant] was on

trial for a criminal offense, even in the absence of the prosecutor's question, any

reasonably knowledgeable juror likely would have surmised that lthe defendantl

had at some point been in jail.

Hill,l40Idaho at631,97 P.3dat 1020. Thus, the denial ofthe mistrial was affirmed. 1d

In the instant case, the district court asked the venire if anyone had personal knowledge

about the case and the following statements arose:

JUROR 12: I am an Ada County deputy sheriff. I,ve been involved in the

defendant's incarceration. So just letting you know. COURT: Thank you, [Juror l2]. So you have some personal knowledge of

the case?

JUROR 12: I don't know anything about the case. I,ve just--he,s been in my

housing unit before. So I want to put that out there.

Thereafter, Anderson requested a sidebar and moved the district court for a mistrial

because Juror l2's comments informed the venire that he had been arrested and in custody. The

district court denied the motion, finding that the jury pool was not tainted because the State

would be presenting evidence that Anderson was, in fact, arrested. Additionallv. the district

court provided the venire witl a curative instruction:

Ladies and Gentlemen of the Jury, you just heard Juror No. 13 (sic) make

a statement conceming his knowledge of the defendant. There will be evidence in

this case that the defendant was arrested and taken to jail. It's a criminal case.

That is not in itself evidence of his guilt; it wi be simply one of the facts that

comes out during trial. And you're not to use that fact as evidence of zuilt. So

that--please do not--as I said, the defendant enjoys the presumption of iriocence,

so the mere fact that he was arrested does not mean he was guilty of anything at

all, merely that someone brought a charge.

On appeal, Anderson contends that the district court erred because Juror l2's comments

were prejudicial and should have resulted in a mistrial. First, Anderson argues the comments

could have been intelpreted to indicate that he was incarcerated at the time of trial for the crimes

he was charged with which would create an inference of guilt, and thus, be prejudicial. Second,

Anderson claims the comments could have been interpreted to indicate that he was incarcerated
for a different offense prior to his cunent charge. He asserts that this interpretation would be an

impermissible reference to a prior conviction and could induce the jury to find him guilty based

on criminal character.l In the altemative, Anderson contends that even if Jrnor 12's comments

were not sufficient to establish prejudice, comments made by another potential juror and the

district court following the mistrial motion should be considered in determinine whether the iurv

pool was impermissibly prejudiced.

We conclude Anderson has failed to demonstrate error in the denial of his mistrial

motion. First, Juror 12 did not sit on the jury as he was excused for cause. second, the district

court provided the jury pool witl a curative instruction. we presume that the jury followed the

district court's instructions. see state v. Kilby, 130 Idaho 747,751,947 p.2d, 420, 424 (ct. App.

1997); State v. Hudson, 129 Idaho 478, 481, 927 P .2d, 45t, 454 (Ct. App. 1996). Anderson has

failed to demonstrate that there was an overwhelming probability that the jury could not follow

the district court's instruction or that Juror 12's comments were devastating to him. Even

considering both proposed interpretations of Juror 12's comments, Anderson is unable to show

that the comments created a continual impact at trial or a "devastating" effect necessary to

establish prejudice.2 Third, evidence was presented at trial indicating tlat Anderson had been

' At oral argument, Anderson contended that the district court did not address the second

interpretation-that Juror 12's cornments infened that Anderson had been previously incarcerated

for a different offense. However, had the court addressed tle comment as an inference of a prior

incarceration, the court would have highlighted tlut inference ratler than the more logical

inference that Anderson was incarcerated for the presently charged offense. The district court,s

instruction indicated that there would be evidence presented that Anderson was arrested fbr the

charged offense and that evidence was in fact presented to the jury. The district court's

instruction informed the jury not to consider Anderson's incarceration for the charged offense as

evidence of his guilt. Additionally, the district court's decision not to higNigit the second

interpretation led the jury away from considering Juror l2's comments aJan inference that

Anderson was incarcerated for a prior offense. The subsequent evidence of incarceration for the

charged offense further dispelled any inference that the comment related to a past incarceration.

2 Anderson makes several additional arguments in an attempt to establish prejudice. First,

Anderson argues that a statement by the district court demonstrates that the co.,rt *a concemed

that Juror l2's statements warranted a mistrial. ln response to the State's request to frrther

question Juror 12 regarding arrest procedures, the court stated, "You want to educate the rest of

the jury by questioning him, and you're going to find another way to educate them. I don,t want

to have a mistrial, and I'm quite concemed that we might." when read in context, the district

court was not stating that Juror l2's past comments warranted a mistrial, but was simply

concemed that firther questioning of Juror 12 could provide additional statements that could
arrested and incarcerated in the Ada county jail. Two police ofiicers testified that they

responded to a call regarding a man threatening store employees with a knife. The officers

identified Anderson as the subject of their investigation and testified that they detained him,

placed him in custody, and hansported him to the jail. Therefore, the jury, through evidence

presented without objection, knew that at some point Anderson was arrested and incarcerated.

Thus, the jury's knowledge during voir dire that Anderson had been incarcerated cannot be

characterized as "devastating" and certainly had no continual prejudicial impact since the jury

was privy to that information during the trial. Accordingly, Anderson has failed to demonsrate

that Juror 12's comments prejudiced the jury.

As to Anderson's altemative argument, he contends that statements made by another

potential juror and the district court compounded the prejudice that resulted from Juror l2's

comments, and therefore, the district court should have declared a mistrial. During voir dire, but

after Anderson's motion for mistrial was denied, the state questioned Juror 32, who stated that

she was very biased and had no use for people with a victim mentality. She further stated that if

Anderson challenged the State's evidence, she would consider that to be a victim mentality and

she did not think that was the way the legal system was meant to work. Juror 32 did not sit on

the jury and Anderson did not renew his motion for mistrial based on these comments.

Additionally, during voir dire, the State mentioned that it would call witnesses to the stand that

were victims. Defense counsel objected to the characterization of the witnesses as victims. The

district court ovemrled the objection, but informed the State that "I do my best to refer to them as

alleged victims, because that's what they are until the close of the evidence." Anderson did not

renew his motion for mistrial.

on appeal, Andenon claims that Juror 32's comments regarding the legal system and

whether or not he should be allowed to assert his innocence prejudiced thejury pool to the extent

have necessitated a mistrial. Second, Anderson argues that the district court's failure to

immediately remove Juror 12 for cause may have indicated to other potential jurors that the

comments were not problematic, thereby inducing them to refuse to speak up conceming their

biases. This argument is purely speculative. Third, Anderson claims thaf the district coun

should have declared a mistrial because Juror l2's comments occurred early in the proceedings.

He provides no authority to support this claim.
that the prior motion for mistrial should have been granted.r Further, he claims that the district

court's statements regarding referring to victims as alleged victims until the close of evidence

naturally implied that the district court believed that, by the close of evidence, the alleged

victims would be proven to be actual victims of the defendant. Therefore, Anderson claims that

the district court's statement implied that he would be shown to be guilty at the end of the trial.

Thus, he contends that the prejudice that resulted from the statements of Juror 32 and the district

court, combined with Juror l2's comments, tainted the jury pool. The State contends that the

conments by Juror 32 and the district court are irrelevant to a determination of whether or not

Juror l2's comments established prejudice for the purpose of declaring a mistrial and, moreover,

do not establish a continuing prejudicial impact.

As discussed above, when considering a motion for a mistrial, the question must be

whether the event which precipitated the motion for mistrial represented reversible error when

viewed in the context of the full record. urquhart,105 Idaho at95,665 p.3dat 1105. Anderson

interprets this to mean tha! on appeal, this Court should consider all potentially prejudicial errors

in the "full record" to determine whether a mistrial should have been granted.a Anderson

misconstrues our standard. When the district court is presented with a motion for mistrial, the

district court considers the record as it existed at the time the motion was made. on appeal, this

court considers the "event which precipitated the motion" and determines if the event

constituted reversible enor. We consider the continuing impact the event had on the trial. but we

do not aggregate all alleged errors occurring thereafter on the record that are unrelated to the

precipitating event. The comments made by Juror 32 and the district court, which in no way

resulted from or related to the comments made by Juror 12, which were not the subject of a

renewed motion, have not been shown to have rendered a tainted jury, or that the motion for

3 Additionally, Anderson claims that since Juror 32 was not excused for cause, it conveyed

to other members of the jury pool that Juror 32's bias was acceptable and that the remaining jwors did not need to bring up any similar biases. This assertion is, again, speculative.

a Anderson points to State v. Field, l44ldaho 559, 571, 165 p.3d 273,285 (2007), for

support. In Field, the Idaho Supreme Coun, based on the cumulative error doctrine, determined

th,at the combination of improperly-joined offenses, admission of out-of-court statements,

admission of bad-acts testimony, and prosecutorial misconduct constituted reversible cumulative

error. However, Anderson is not arguing on appeal that the cumulative enor doctrine applies.
mistrial should have been granted. To the extent that Anderson is claiming the district court

should have sua sponte declared a mistrial based on those comments, we refuse to address the

issue as legal authority and argument is lacking.

TL

CONCLUSION

Anderson has failed to demonstrate reversible error. Accordingly, the district court's

judgment of conviction is affirmed.

Chief Judge GUTIERREZ and Judge LANSING CONCUR.