               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No.39510

STATE OF IDAHO,                                       2014 Unpublished Opinion No.350

       Plaintiff-Respondent,                           Filed: February 6,2014

                                                       Stephen W. Kenyon, Clerk

MICHAEL PAUL ANDERSON,                                THIS IS AN TJNPUBLISHED
                                                      OPINION AI\D SHALL NOT
       Defendant-Appellant.                           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
                                                                                         $$ lg-
901(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
        sectionof the community is impartial, regardless of the mix of individua-
       viewpoints 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   jury obeys the trial court's insffuctions to disregard statements.
                                the
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   concemed*a
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.
