Opinion
Docket No. 27250.
Filed: September 9, 2002.
Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Craig C. Kosonen, District Judge.
Judgments of conviction and concurrent unified sentences of seven years, with a minimum period of confinement of two years, for burglary and twenty years, with a minimum period of confinement of four years, for aggravated assault, affirmed; order relinquishing jurisdiction, affirmed; order denying I.C.R. 35 motion for reduction of sentences, affirmed.
Molly J. Huskey, Interim State Appellate Public Defender; Paul S. Sonenberg, Deputy Appellate Public Defender, Boise, for appellant. Paul S. Sonenberg argued.
Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
William E. McLeskey, Jr. appeals from his judgments of conviction and sentences for burglary and aggravated assault. McLeskey also appeals from the district court's orders relinquishing jurisdiction and denying McLeskey's I.C.R. 35 motion for reduction of sentences. We affirm.
I. FACTS AND PROCEDURE
In the early morning hours of May 30, 2000, the victims in this case were asleep in their rural home. They were awakened by the sound of a vehicle coming up the road leading to their property and observed the vehicle stop next to a chicken coop and extinguish its lights. One of the victims retrieved a gun and went outside to investigate. As the victim approached the chicken coop searching for the vehicle, he noticed a light on in his nearby barn. The victim walked toward the barn and observed that the light was turned off. He also heard the barn door open and close. However, because it was dark, he was unable to see who or how many people had exited the barn. Suddenly, a gunshot was fired at the victim, but did not strike him. The victim returned fire. He then heard footsteps running away from the barn toward a nearby wooded area. At that time, the vehicle's engine and lights were turned on. The victim approached the vehicle and ordered the driver to step out. The victim took the driver to his home and instructed him to sit on the porch until police officers arrived. Minutes later, the victim heard another man shout, "Don't shoot, I'm coming out" from the direction of the victim's garage. The victim ordered that man, later identified as McLeskey, to sit next to the driver on the porch. The victim noticed that McLeskey had been wounded by a gunshot to the back and left shoulder. Shortly thereafter, officers arrived at the scene. Upon investigation, the victim observed that a motorcycle and a socket set had been removed from his barn. The motorcycle was discovered in the back of the intruders' vehicle and the socket set was found on the ground near the barn.
McLeskey was arrested and charged with burglary, I.C. §§ 18-1401, 18-204, and aggravated assault, I.C. §§ 18-901, 18-905, § 18-204. In addition, the state sought a weapon enhancement for use of a firearm in relation to each charge. I.C. § 19-2520. The weapon enhancement relating to the burglary charge was dismissed by the district court prior to trial. After a jury trial, McLeskey was found guilty. McLeskey subsequently filed a motion for a new trial, which was denied.
For burglary, McLeskey was sentenced to a unified term of seven years, with a minimum period of confinement of two years. For aggravated assault, McLeskey was sentenced to an enhanced unified term of twenty years, with a minimum period of confinement of four years, to run concurrent with McLeskey's sentence for burglary. The district court retained jurisdiction for 180 days but at the end of McLeskey's evaluation period, the district court relinquished jurisdiction. McLeskey filed a Rule 35 motion requesting a reduction in his sentences, which was denied.
McLeskey appeals, asserting that he was entitled to a new trial based on errors occurring at trial, that the district court erred by relinquishing jurisdiction, that his sentences are excessive, and that the district court abused its discretion by denying his Rule 35 motion. The state cross-appeals, arguing that the district court erred by dismissing the weapon enhancement in relation to McLeskey's burglary charge.
One of the issues asserted by McLeskey in this regard is that the district court erred by failing to submit the weapon enhancement on the aggravated assault to the jury as required by Apprendi v. New Jersey, 530 U.S. 466 (2000). At oral argument, McLeskey conceded that based upon the facts of this case, the district court did not err and we, therefore, do not address that issue on appeal.
The state does not seek affirmative relief in relation to its cross-appeal. Rather, the state requests that we address this issue only if we conclude that McLeskey is entitled to a new trial.
II. ANALYSIS
A. Comment on Guilt
During voir dire at McLeskey's trial, the district court stated:
Jurors tell me, "Gosh, I just don't think-I just don't-it's such an unspeakable crime. I don't think I can be fair and unbiased to the defendant." Well, the juror must understand because I'm not asking the juror to condone or overlook [the offense]. I'm not asking the juror to not be biased against someone who has [committed an offense]. The distinction I make is please recognize that you're not supposed to be biased against one of us citizens who is simply accused of doing that because it's your job to decide if he or she is the person guilty. Then go ahead and be biased. But do not assume, simply because a person is accused, that they're guilty.
I'll be honest with you. Of course most of the people charged are guilty. There. I said it. Big secret. Well, guess what? It's not always the case.
(Emphasis added.). McLeskey did not object to the district court's remark. On appeal, McLeskey claims that the district court's comment that most of the people who are charged are guilty violated his right to a fair trial because it nullified the presumption that he was innocent until proven guilty. The state concedes that the district court's comment was error but asserts that the error did not constitute fundamental error or, alternatively, was harmless.
Ordinarily, this Court will not address an issue not preserved for appeal by an objection in the trial court. State v. Rozajewski, 130 Idaho 644, 645, 945 P.2d 1390, 1391 (Ct.App. 1997). However, we may consider fundamental error in a criminal case, even though no objection was made at trial. Id. Fundamental error has been defined as error which goes to the foundation or basis of a defendant's rights, goes to the foundation of the case or takes from the defendant a right which was essential to his or her defense and which no court could or ought to permit to be waived. State v. Babb, 125 Idaho 934, 940, 877 P.2d 905, 911 (1994).
The right to a fair trial is a fundamental right guaranteed by the Fourteenth Amendment. State v. Miller, 131 Idaho 288, 293, 955 P.2d 603, 608 (Ct.App. 1997). The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice. Estelle v. Williams, 425 U.S. 501, 503 (1976); State v. Crawford, 99 Idaho 87, 95, 577 P.2d 1135, 1143 (1978); Miller, 131 Idaho at 293, 955 P.2d at 608. In conducting a criminal trial, a court must carefully guard against dilution of the principle that guilt is to be established by probative evidence beyond a reasonable doubt. Miller, 131 Idaho at 293, 955 P.2d at 608. The test to determine if the remarks of a trial court are prejudicial is whether those remarks constitute comment on the weight of the evidence, or indicate an opinion on the guilt or innocence of the defendant, rather than constituting clarification of the matter under consideration. State v. Polson, 81 Idaho 147, 162, 339 P.2d 510, 519 (1959); State v. Gooding, 110 Idaho 856, 859, 719 P.2d 405, 408 (Ct.App. 1986). Remarks or comments by a trial court that would tend to prejudice either of the parties to a jury trial are proscribed because of the great possibility that such an expression will influence the jurors. State v. White, 97 Idaho 708, 711, 551 P.2d 1344, 1347 (1976).
In the present case, the district court's statement that most people charged with a crime are guilty was unnecessary to clarify the matter under consideration — which was whether the prospective jurors could remain unbiased despite the nature of the charges against McLeskey. Because the presumption that McLeskey was innocent until proven guilty beyond a reasonable doubt was a basic component of his right to a fair trial, we conclude that the district court's remark constituted fundamental error. That does not end our inquiry, however. We next examine whether the error was harmless. See State v. Poland, 116 Idaho 34, 37, 773 P.2d 651, 654 (Ct.App. 1989). The standard for determining whether error of constitutional dimension is harmless is whether the appellate court can conclude, beyond a reasonable doubt, that the error did not contribute to the defendant's conviction. State v. LePage, 102 Idaho 387, 393, 630 P.2d 674, 680 (1981); Poland, 116 Idaho at 37, 773 P.2d at 654.
Here, when viewed in context, we conclude that the purpose of the district court's statement concerning the guilt of an accused was to address what many people, including the potential jurors, may assume. The district court sought to advise the potential jurors that their duty was not to assume that McLeskey was guilty merely because he had been charged with crimes. Although the statement complained of was unnecessary, it was meant to caution the potential jurors against assuming McLeskey's guilt.
The jurors' duty not to assume guilt was also emphasized by other instructions given by the district court. The district court instructed the jury that was ultimately empanelled that McLeskey was presumed innocent until the contrary was proven and that the state had the burden of proving each element of the crimes with which McLeskey was charged beyond a reasonable doubt. We must presume that the jury followed the district court's instructions. See State v. Hedger, 115 Idaho 598, 601, 768 P.2d 1331, 1334 (1989); State v. Kilby, 130 Idaho 747, 751, 947 P.2d 420, 424 (Ct.App. 1997). Because the district court's comment, when viewed in context, was meant to caution the potential jurors against assuming McLeskey's guilt, we conclude beyond a reasonable doubt that the district court's statement regarding the guilt of an accused did not contribute to McLeskey's conviction and was, therefore, harmless.
B. Instruction Permitting Premature Discussion of Case
At the outset of trial, the district court gave the following instruction, in relevant part, concerning the jury's deliberation process:
[D]o not talk about this case with anyone else during the course of trial. In fairness to both sides, you should keep an open mind throughout the trial and not form or express any final opinions about the case while it is being presented. You may discuss this case among yourselves during the progress of the trial provided you understand the following conditions: (1) all discussions must take place in the jury room, (2) all jurors and alternates must be present during such discussions, and (3) you reach no final decisions on any contested questions, remembering that you are only making temporary assessments as the case progresses. You should only reach your final decision after you have heard all the evidence, my final instructions and the final arguments, and it is submitted to you for your final decision.
McLeskey did not object to the instruction at any time during trial. After he was found guilty, McLeskey moved for a new trial, claiming that the above instruction, allowing the jury to discuss the case among themselves before completion of the trial, violated I.C. § 19-2127 and his constitutional right to a trial by an impartial jury. After a hearing, the district court denied McLeskey's motion. Although the district court recognized that the instruction was contrary to I.C. § 19-2127, the district court held that any error was harmless because that statute concerned a rule of procedure rather than a substantive rule. On appeal, the state concedes that the district court's instruction was erroneous but claims that McLeskey did not preserve his objection to the instruction for appellate review and that the error was harmless.
The question whether the jury has been properly instructed is a question of law over which we exercise free review. State v. Gleason, 123 Idaho 62, 65, 844 P.2d 691, 694 (1992). When reviewing jury instructions, we ask whether the instructions as a whole, and not individually, fairly and accurately reflect applicable law. State v. Bowman, 124 Idaho 936, 942, 866 P.2d 193, 199 (Ct.App. 1993). The failure to object to an instruction at trial in a criminal case does not constitute a waiver of any objection to the instruction on appeal. State v. Smith, 117 Idaho 225, 229, 786 P.2d 1127, 1131 (1990); State v. Rivas, 129 Idaho 20, 23, 921 P.2d 197, 200 (Ct.App. 1996). Because McLeskey did not waive his challenge to the jury instruction at issue by failing to object to it at trial, we will address the merits of McLeskey's argument.
In some jurisdictions, the error in giving an instruction such as the one in the present case has been held to be error of a constitutional magnitude which requires automatic reversal. See generally Winebrenner v. United States, 147 F.2d 322 (8th Cir. 1945); State v. Washington, 438 A.2d 1144 (Conn. 1980).
In other jurisdictions, courts have held that, depending on the context in which such an instruction was given, the error was harmless. In United States v. Lemus, 542 F.2d 222 (4th Cir. 1976), the trial court twice instructed the jury during trial that discussion among the jury members was entirely proper. The defendant objected both times. On appeal, the court held that, in the abstract, the trial court's instruction would have been contrary to prevailing law and would have jeopardized the defendant's right to a fair trial. However, because the instruction given by the trial court the first time was coupled with a lengthy admonition to the jury to refrain from reaching any conclusions until all the evidence was submitted and an appropriate charge given, the appellate court held that the language used and the emphasis placed upon open-mindedness minimized any danger to the defendant. The second time the instruction was given was immediately after closing arguments and the jurors were excused for the evening. They were recalled the next morning and received the trial court's charge. The court held that, under those circumstances, it was highly unlikely that the instruction triggered additional debate and, even if it did, the ensuing dialogue could only have reflected the totality of the evidence. Thus, the court held that, to the extent the instruction was erroneous, the error was not substantial and did not require reversal of the defendant's conviction.
In United States v. Meester, 762 F.2d 867 (11th Cir. 1985), the trial court advised the jury that there was nothing wrong with "chit-chat" about the case. The defendants did not object but on appeal contended that the instruction violated their Sixth Amendment right to trial by an impartial jury. The appellate court observed that the objectionable language was coupled with a lengthy admonition by the trial court that the jurors should refrain from reaching a decision until all of the evidence was submitted, closing arguments were concluded, and the charge was presented by the trial court. The court concluded that any danger of jury impartiality was minimized by the trial court's repeated emphasis on the need for the jurors to keep an open mind until the conclusion of the case. Thus, the court determined that any error with the trial court's instruction was harmless.
In Idaho, the admonition to jurors not to discuss the case among themselves before the conclusion of the trial is required by statute. See I.C. § 19-2127. Such an admonition also protects a defendant's constitutional rights to due process and trial by an impartial jury. There are many reasons why premature discussions among the jurors are to be avoided. Because the prosecution presents its evidence first, any premature discussions are likely to occur before the defendant has had a chance to present all of his or her evidence, raising the risk that any initial opinions formed by the jurors, which may influence other jurors, will be unfavorable to the defendant. See United States v. Resko, 3 F.3d 684, 689 (3rd Cir. 1993). Once a juror expresses his or her views in the presence of other jurors, he or she may be more likely to continue to adhere to that opinion and to pay greater attention to evidence presented that comports with that opinion. See id. The jury system is meant to involve decision-making as a collective, deliberative process and premature discussions among jurors may thwart that goal. Id. In addition, because the trial court provides the jury with the legal instructions only after all of the evidence has been presented, jurors who engage in premature deliberations do so without the benefit of the court's instructions on the reasonable doubt standard. Id. If premature deliberations or discussions occur before the defendant has had an opportunity to present all of his or her evidence and jurors form premature conclusions about the case, the burden of proof will have been effectively shifted from the prosecution to the defendant to change by evidence the opinion thus formed. Id.
Accordingly, we conclude that, not only was the district court's instruction to the jury that it could discuss the case prior to final submission a violation of I.C. § 19-2127, in some circumstances it could also be error of constitutional magnitude. Our next task, then, is to determine whether the error requires automatic reversal or whether a harmless error analysis applies. Constitutional error does not require reversal of a conviction on appeal unless it appears from the record that the error may have contributed to the verdict, leaving the appellate court with a reasonable doubt that the jury would have reached the same result had the error not occurred. State v. Young, 106 Idaho 142, 144, 676 P.2d 56, 58 (Ct.App. 1984).
Here, there is no evidence in the record that the district court's instruction had any bearing on the jury's deliberations or verdicts in this case or that the jurors actually discussed the case prior to its final submission to them. Additionally, the jury instructions, when read as a whole, emphasized the requirement that the jurors keep an open mind during trial. The district court instructed the jury that McLeskey was presumed to be innocent and that the effect of that presumption was to place the burden upon the prosecution to prove McLeskey guilty beyond a reasonable doubt. The jury was advised that it must acquit McLeskey unless it was satisfied beyond a reasonable doubt of McLeskey's guilt after careful and impartial consideration of all the evidence in the case. The jury was further instructed that the burden of proof never shifted to McLeskey and that the law never imposed upon a defendant in a criminal case the burden or duty of proving his or her innocence or producing any evidence at all. Finally, the district court reiterated the jury's duty to acquit McLeskey if it had a reasonable doubt about his guilt, after going over the entire case in their minds.
In addition to expressly authorizing the jury to discuss the case during trial, the instruction challenged by McLeskey also instructed the jury to keep an open mind throughout the trial and not form or express any final opinions about the case while it was being presented. A condition for discussing the case during trial was that the jury was to reach no final decisions on any contested questions and remember that it was only making temporary assessments as the case progressed. The jury was further instructed that it should only reach a final decision after it had heard all of the evidence, the district court's final instructions and final arguments by counsel, and after the case had been submitted to it for its final decision. This Court presumes that the jury followed the district court's instructions. See State v. Hudson, 129 Idaho 478, 481, 927 P.2d 451, 454 (Ct.App. 1996). Furthermore, when read in context, the challenged instruction closely resembles the instructions given in Lemus and Meester, in both of which the courts held that any error in giving an instruction such as the instruction at issue here was harmless.
In sum, there is no evidence in the record indicating that the jurors engaged in premature discussion of the case prior to its submission or that such discussion, if any, influenced the jury's deliberations or verdicts. The jury instructions, when viewed as a whole, emphasized the need for the jury not to reach a final decision concerning McLeskey's guilt until it had heard all of the evidence and the case had been submitted to it. We conclude that, based upon the facts of this case, the error in instructing the jury that it could prematurely discuss the case did not contribute to the jury's verdicts. Therefore, the error was harmless. However, we repeat the admonition given by the Idaho Supreme Court that trial courts should give jury instructions that have previously been approved by the Court or face considerable risk that the verdict rendered will be overturned on appeal. See State v. Merwin, 131 Idaho 642, 647, 962 P.2d 1026, 1031 (1998).
C. Cumulative Error
McLeskey contends that the errors occurring at trial, even if harmless standing alone, warranted a new trial under the cumulative error doctrine. The cumulative error doctrine refers to an accumulation of irregularities, each of which by itself might be harmless, but when aggregated, show the absence of a fair trial in contravention of the defendant's right to due process. State v. Moore, 131 Idaho 814, 823, 965 P.2d 174, 183 (1998). The presence of errors alone, however, does not require the reversal of a conviction because, under due process, a defendant is entitled to a fair trial, not an error-free trial. Id.
In the present case, we have concluded that the district court erred by commenting to the jury that most people charged with a crime are guilty and expressly instructing the jury that it could engage in premature discussions about McLeskey's case before final submission.
However, when viewed in relation to the totality of the evidence presented at trial, we hold that those errors were not of such magnitude that McLeskey was deprived of his right to a fair trial.
D. Relinquishment of Jurisdiction
For his burglary conviction, McLeskey was sentenced to a unified term of seven years, with a minimum period of confinement of two years. For aggravated assault, McLeskey was sentenced to an enhanced unified term of twenty years, with a minimum period of confinement of four years, to run concurrent with his sentence for burglary. The district court retained jurisdiction for 180 days, and McLeskey was sent to participate in the rider program at the North Idaho Correctional Institution (NICI).
After McLeskey completed evaluation at NICI, the jurisdictional review committee recommended that the district court relinquish jurisdiction. The reasons for the committee's recommendation were that McLeskey presented major disciplinary problems, his behavior indicated a lack of self-control and few attempts to improve his behavior, and his criminal thinking appeared to remain entrenched as indicated by his repeated disciplinary problems. At McLeskey's jurisdictional review hearing, the district court indicated that it was going to take the matter under advisement in order to conduct further investigation into the reasons behind the committee's recommendation. Thereafter, the district court entered an order relinquishing jurisdiction. On appeal, McLeskey claims that the district court erred by relinquishing jurisdiction without affording him an opportunity to address any additional information discovered by the district court concerning the committee's recommendation.
The decision to place a defendant on probation or whether, instead, to relinquish jurisdiction over the defendant is a matter within the sound discretion of the district court and will not be overturned on appeal absent an abuse of that discretion. State v. Hood, 102 Idaho 711, 712, 639 P.2d 9, 10 (1981); State v. Lee, 117 Idaho 203, 205-06, 786 P.2d 594, 596-97 (Ct.App. 1990).
In its order declining to place McLeskey on probation, the district court stated:
The Court having reserved ruling on the recommendation to relinquish jurisdiction, and having reviewed the case file and having determined that defendant is not ready to be placed in the position of trust incumbent to probation on a charge of aggravated assault in which he actually fired a revolver at the homeowner, now, therefore orders as follows:
IT IS HEREBY ORDERED that jurisdiction be relinquished and that defendant be transported to Idaho Department of Correction, to serve his sentence.
There is nothing in the record demonstrating that the district court actually conducted further investigation into the committee's recommendation to relinquish jurisdiction, and the district court's order relinquishing jurisdiction does not suggest that the district court received additional information in that regard. To the contrary, the order states that the district court again reviewed McLeskey's case file. Accordingly, we conclude that McLeskey has failed to show error in the district court's decision to relinquish jurisdiction.
E. Sentence Review
McLeskey also asserts that the sentences imposed in his case are excessive and constitute an abuse of discretion in light of his remorse, strong family support, first-time felony offender status, young age, and rehabilitation potential. Our appellate standard of review and the factors to be considered when evaluating the reasonableness of a sentence are well established. State v. Burdett, 134 Idaho 271, 1 P.3d 299 (Ct.App. 2000); State v. Sanchez, 115 Idaho 776, 769 P.2d 1148 (Ct.App. 1989); State v. Reinke, 103 Idaho 771, 653 P.2d 1183 (Ct.App. 1982); State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App. 1982).
McLeskey's offenses resulted from him entering a barn and stealing personal property. Upon being discovered in the barn, McLeskey fired a weapon at the victim. Despite the evidence presented at trial, McLeskey gave a completely inconsistent version of the incident to the presentence investigator, apparently in an attempt to minimize his culpability. Additionally, McLeskey disclaimed any responsibility for the aggravated assault he committed against the victim. Although there was some dispute concerning whether McLeskey had previously been convicted of a felony, his presentence investigation report demonstrated that McLeskey was not a first-time offender. Additionally, the evidence in the record indicated that McLeskey's potential for rehabilitation was slim, considering his denial of culpability for his underlying offenses and his behavior while in the retained jurisdiction program.
The district court fashioned McLeskey's sentences taking into account the four sentencing objectives. Additionally, the district court was aware of the mitigating factors claimed by McLeskey. After considering the nature of McLeskey's crimes, McLeskey's continued denial of culpability for his offenses, and the mitigating factors raised by McLeskey, the district court determined that a period of incarceration was necessary in this case to adequately protect society. Upon review of the record in this case, we conclude that McLeskey's sentences were not unreasonable or excessive.
F. Rule 35 Motion
McLeskey filed an I.C.R. 35 motion for reduction of his sentences. In his motion, McLeskey asserted that his Rule 35 motion was filed to preserve his rights and that a hearing would be scheduled at such time as he was ready to proceed. A hearing was never scheduled and no additional briefing, argument or evidence was submitted in support of McLeskey's motion. Because there was no basis upon which to grant McLeskey's motion, it was ultimately denied.
On appeal, McLeskey concedes that there was no new or additional information supporting his Rule 35 motion but claims that his sentences were excessive as originally imposed. Having determined that McLeskey's sentences were not excessive when originally imposed, we conclude that the district court did not abuse its discretion by denying McLeskey's Rule 35 motion.
III. CONCLUSION
The district court committed fundamental error by advising potential jurors that most people charged with a crime are guilty. The error in the district court's statement was harmless, however, when viewed in the context in which it was made. The district court also erred by instructing the jury that it could discuss the case prior to the case being submitted to the jury. However, based upon the facts in this case, the error in giving the instruction was harmless. Although there were errors occurring at McLeskey's trial, the cumulative error doctrine does not apply to warrant a new trial because the errors were not of such magnitude that McLeskey was deprived of his right to a fair trial when they are viewed in relation to the totality of the evidence presented.
McLeskey has failed to demonstrate that the district court considered information in addition to that contained in his case file when it relinquished jurisdiction. Therefore, we hold that McLeskey has not shown that the district court erred in relinquishing jurisdiction. Additionally, McLeskey has not demonstrated that his sentences were unreasonable or excessive. Because McLeskey's sentences were not excessive when originally pronounced and McLeskey failed to submit new or additional information in support of his Rule 35 motion, he has failed to establish that the district court abused its discretion by denying his Rule 35 motion.
Finally, because McLeskey conceded no error occurred in relation to his Apprendi claim, we do not address that issue. Based upon our resolution of the issues raised by McLeskey on appeal, it is unnecessary to address the state's issue on cross-appeal. McLeskey's judgments of conviction and sentences, and the district court's orders relinquishing jurisdiction and denying McLeskey's Rule 35 motion, are affirmed.
Judge LANSING and Judge GUTIERREZ, CONCUR.