                   IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41603

STATE OF IDAHO,                                 ) 2015 Opinion No. 17
                                                )
       Plaintiff-Respondent,                    ) Filed: April 2, 2015
                                                )
v.                                              ) Stephen W. Kenyon, Clerk
                                                )
BRIAN NEIL PRATT,                               )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Second Judicial District, State of Idaho, Nez
       Perce County. Hon. Jeff M. Brudie, District Judge.

       Judgment of conviction for two counts of delivery of a controlled substance and
       one count of trafficking in methamphetamine, vacated and remanded.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

MELANSON, Chief Judge
       Brian Neil Pratt appeals from his judgment of conviction for two counts of delivery of a
controlled substance and one count of trafficking in methamphetamine. For the reasons set forth
below, we vacate and remand.
       Pratt was charged with two counts of delivery of a controlled substance, I.C. § 37-
2732(a)(1)(A); one count of trafficking in methamphetamine, I.C. § 37-2732B(a)(4)(C); and a
persistent violator enhancement, which was later withdrawn. The matter proceeded to a jury
trial. During voir dire, the district court explained that Pratt was charged with delivery of a
controlled substance and trafficking in methamphetamine. During voir dire, a prospective juror
indicated that he knew Pratt.      When the prosecutor asked for details regarding how the
prospective juror knew Pratt, the prospective juror explained, “I don’t know about this case, but I
got in trouble awhile back and same thing that he’s in trouble kind of for. That’s how I know

                                                1
him.” Pratt moved for a mistrial on the ground that the prospective juror’s comment tainted the
jury pool. Pratt argued that the prospective juror’s comments implied that he knew Pratt through
some sort of controlled substance delivery or events that occurred in the prospective juror’s legal
case. The state argued that the potential juror’s comments did not rise to the level of tainting the
entire jury pool because the potential juror did not indicate that he dealt with Pratt in his capacity
as a methamphetamine dealer, but just stated that he knew Pratt and had faced similar charges as
those Pratt was facing. In response to the state’s comments, the district court held:
               Well, I agree. I think at this point in time there has not been sufficient
       information brought before the jury panel that I think we would--is something that
       could not be dealt with by way of a limiting instruction if necessary. I don’t
       believe there have been adequate grounds shown at this time for the granting of a
       mistrial. [The prospective juror] did go far in his answer and if we could have
       perhaps controlled a little bit, but he indicated that he had been charged and that
       he knew Mr. Pratt through his prior action, but he doesn’t really make direct
       accusations against Mr. Pratt for having been involved with delivery of controlled
       substance or anything of that nature.
               So I think we can deal with it adequately through the limiting instructions
       that I’m going to be providing to the jury once sworn, and so I’m going to deny
       the motion for mistrial and we can proceed with jury selection . . . .

The district court did not give a curative instruction to disregard the prospective juror’s
comment. Jury selection was completed and Pratt was ultimately found guilty of two charges of
delivery of a controlled substance and one count of trafficking in methamphetamine. Pratt
appeals, challenging the district court’s denial of his motion for mistrial.
       A decision on a motion for new trial is reviewed under an abuse of discretion standard.
State v. Egersdorf, 126 Idaho 684, 687, 889 P.2d 118, 121 (Ct. App. 1995). When a trial court’s
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry
to determine: (1) whether the lower court correctly perceived the issue as one of discretion;
(2) whether the lower court acted within the boundaries of such discretion and consistently with
any legal standards applicable to the specific choices before it; and (3) whether the lower court
reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d
1331, 1333 (1989).
       Pratt argues his constitutional right to a fair trial with an impartial jury was violated when
the district court failed to give a curative instruction and denied Pratt’s motion for a mistrial
following the prospective juror’s comment. A criminal defendant has a constitutional right to

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trial by an impartial jury. U.S. CONST. AMENDS. V, VI, and XIV; IDAHO CONST. art. 1, §§ 7 and
13. A juror is presumed to be impartial absent some evidence of taint. See Ross v. Oklahoma,
487 U.S. 81, 86 (1988); Lockhart v. McCree, 476 U.S. 162, 184 (1986).
       The state argues that the district court’s denial of Pratt’s motion for a mistrial was not in
error because Pratt failed to show that the prospective juror’s comments had a continuing impact
on the trial. A response to voir dire questioning must have a lasting impact for there to be
prejudice. State v. Laymon, 140 Idaho 768, 771, 101 P.3d 712, 715 (Ct. App. 2004). The
purpose of voir dire is to ascertain any knowledge or biases of venire members. 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. In
Laymon, 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. at 769, 101 P.3d at 713.
The potential juror was removed, and the trial court issued a curative instruction.            That
instruction did not merely direct the venire members to disregard the potential juror’s remark or
inform them that the remark was not evidence. The trial court then specifically refuted the
remark, informing the venire members that, in fact, the case involving the defendant during the
prior week had been dismissed so the defendant had not been convicted of anything. This Court
affirmed the denial of a mistrial because “there was no continuing impact on the trial.” Id. at
771, 101 P.3d at 715.
       Similarly, in another case before the Idaho Supreme Court, three prospective jurors
expressed their opinions that the defendant was guilty of the charged crime. State v. Ellington,
151 Idaho 53, 68-70, 253 P.3d 727, 742-44 (2011). The Court held that three potential jurors
expressing opinions of the defendant’s guilt was insufficient 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.   Id.   The Court further explained that the presumption of impartiality was not
overcome because the jurors “did not receive any specific facts” as to why the jurors believed the
defendant was guilty. Id. at 69, 253 P.3d at 743. In both Laymon and Ellington, the jurors only
expressed opinions regarding the defendants’ guilt and, in each of these cases, a timely and
specific curative instruction was given to the juror to neutralize any taint. However, this case is
different because the potential juror asserted facts, rather than his opinion, from which it could

                                                3
be inferred that Pratt had previously been associated with the same criminal activity for which he
was charged in this case and no specific curative instruction was given.
          We hold that the prospective juror’s assertion of personal knowledge of Pratt’s past
association with activity similar to that with which he was charged tainted the jury and was
sufficient to overcome the presumption that each of the remaining jurors was impartial. We also
agree with Pratt that (without a curative instruction from the district court) the jury remained
tainted, and the prospective juror’s comments had a continuing impact on the trial. Therefore,
the district court should have granted Pratt’s motion for a mistrial. Accordingly, we vacate
Pratt’s judgment of conviction for two counts of delivery of a controlled substance and one count
of trafficking in methamphetamine and remand to the district court.
          Judge LANSING, CONCURS.
          Judge GRATTON, DISSENTING.
          I respectfully dissent. I do not believe that the rather vague statement made by the
prospective juror was damaging enough to overcome the presumption of juror impartiality. I do
not agree with the majority bright-line delineation between so called opinion and fact statements.
I do not agree with the Court’s analysis of the curative or limiting instruction issue, given the
manner in which the issue was addressed below. Finally, I fail to see any evidence that the
prospective juror’s statement had a “continuing impact on the trial.” 1
           In his brief, Pratt cites to what are apparently the three principal cases in this area, State
v. Ellington, 151 Idaho 53, 253 P.3d 727 (2011), State v. Laymon, 140 Idaho 768, 101 P.3d 712
(Ct. App. 2004), and State v. Kilby, 130 Idaho 747, 947 P.2d 420 (Ct. App. 1997). From his
analysis of these cases, Pratt states that the key considerations “appear to be whether the jurors

1
          [T]he question on appeal is not whether the trial judge reasonably exercised his
          discretion in light of circumstances existing when the mistrial motion was made.
          Rather, 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.
          Thus, where a motion for mistrial has been denied in a criminal case, the “abuse
          of discretion” standard is a misnomer. The standard, more accurately stated, is
          one of reversible error. 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. Ellington, 151 Idaho 53, 68, 253 P.3d 727, 742 (2011) (quoting State v. Field,
    144 Idaho 559, 571, 165 P.3d 273, 285 (2007)).
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were provided with a cautionary instruction to disregard the prejudicial statement and whether
they learned anything specific from the potential juror’s statement.” I suppose that is a fair
summary of the key considerations, and so will address each, however, in reverse order.
       But, before addressing these considerations, it is important to remember the context in
which they are applied. Jurors are presumed to be impartial.
       [T]he Constitution presupposes that a jury selected from a fair cross section of the
       community is impartial, regardless of the mix of individual viewpoints actually
       represented on the jury, so long as the jurors can conscientiously and properly
       carry out their sworn duty to apply the law to the facts of the particular case.
Ellington, 151 Idaho at 69, 253 P.3d at 743 (quoting Ross v. Oklahoma, 487 U.S. 81, 86 (1988)).
As further explained by the Idaho Supreme Court:
       The trial court does not need to find jurors that are entirely ignorant of the facts
       and issues involved in the case. To hold that the mere existence of any
       preconceived notion as to the guilt or innocence of an accused, without more, is
       sufficient to rebut the presumption of a prospective juror’s impartiality would be
       to establish an impossible standard. It is sufficient if the juror can lay aside his
       impression or opinion and render a verdict based on the evidence presented in
       court.

Ellington, 151 Idaho at 69, 253 P.3d at 743 (quoting State v. Hairston, 133 Idaho 496, 506, 988
P.2d 1170, 1180 (1999)). Thus, the jurors that sat on this jury are presumed to be impartial. As I
will discuss more fully below, the fact that the prospective juror with some apparent knowledge
of Pratt did not sit on the jury is quite important, 2 but overlooked by the Court. In my opinion,
Pratt has failed to overcome the presumption that the impaneled jury was impartial. 3
A.     Specific Facts Learned From the Prospective Juror’s Statement.
       During voir dire, sometime after the prospective juror indicated that he knew Pratt, the
prosecutor, in an attempt to avoid any prejudicial response, simply asked if this relationship
would cause the juror to be partial:




2
       See Ellington, 151 Idaho at 69, 253 P.3d at 743 (“None of the jurors who expressed the
opinions on Mr. Ellington’s guilt that are at issue on appeal actually sat on the jury.”).
3
        See Ellington, 151 Idaho at 70, 253 P.3d at 744 (“Thus, Mr. Ellington has not shown that
the expressions of the three prospective jurors that Mr. Ellington was guilty overcome the
presumption that the impaneled jurors were impartial, and to that end he cannot show a violation
of his due-process rights.”).
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       Prosecutor:            [Prospective Juror], without telling me exactly the nature of
                              your relationship with Mr. Pratt, would that relationship
                              cause you concern about sitting in this case as --
       Prospective Juror:     I don’t know about this case, but I got in trouble awhile
                              back and same thing that he’s in trouble kind of for. That’s
                              how I know him.
       Prosecutor:            So do you think you would be better suited for a different
                              type of jury maybe --
       Prospective Juror:     Maybe.
       Prosecutor:            -- where you didn’t know the defendant?
       Prospective Juror:     Maybe, yes, Ma’am.
       Prosecutor:            I think based on that we are going to ask that [the
                              prospective juror] be excused for cause, your Honor.
       The Court:             Any objection, [defense counsel]?
       Defense Counsel:       No objection, your Honor.
       The Court:             Well, [prospective juror], we’d like to--as you can imagine,
                              kind of not have those issues potentially cloud a jury
                              selection process and on through a deliberation. So this
                              probably is a case that you should probably not sit on. So
                              I’m going to grant you and excuse you from further
                              participation on this jury panel.

Pratt argues that the statement implied that the prospective juror knew Pratt through some sort of
controlled substance delivery or events incident to the prospective juror’s former legal trouble.
The majority here agrees, finding that it “could be inferred that Pratt had previously been
associated with the same criminal activity for which he was charged in this case.” I do not
disagree that the statement could lead to an inference that Pratt had previous interactions with
those involved in the drug milieu. I do not agree that we should or are required to simply adopt
the most damaging or prejudicial inference. As I will discuss more fully below, in my view, this
rather vague statement says nothing of “fact” about Pratt. Before I get there, however, I will
address my strong disagreement with the notion that the prejudicial impact of a statement, in this
context, depends upon whether it is characterized as a statement of opinion or a statement of fact.
        The majority reviews Laymon and Ellington, and distinguishes those cases on the basis
of a dichotomy between expression of opinion and assertion of fact, stating: “In both Laymon
and Ellington, the jurors only expressed opinions regarding the defendants’ guilt and, in each of
these cases, a timely and specific curative instruction was given to the jury to neutralize any
taint. However, this case is different because the potential juror asserted facts, rather than his
opinion, from which it could be inferred that Pratt had previously been associated with the same


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criminal activity for which he was charged in this case and no specific curative instruction was
given.”     First, I do not read these cases, including Kilby, for the proposition that when
considering a motion for mistrial because of a prospective juror’s statement, an expression of
opinion is not considered harmful whereas an expression of fact is. Second, I think that such a
distinction is quite illusory, as I believe is evident from these cases.
          In Kilby, a prospective juror in a sexual abuse case burst out that Kilby was a pedophile.
In holding Kilby was not denied a fair trial, we correctly reasoned that the juror was excused and
the remaining jurors were instructed to ignore the comment, which we presumed they followed.
Kilby, 130 Idaho at 751, 947 P.2d at 424. This case appears to be the clearest as a true statement
of opinion. There is no indication that the prospective juror had any factual basis to make the
allegation. However, this Court did not deem the statement to be un-offensive, as a statement of
opinion, but focused on the important fact that the prospective juror was excused and the
impaneled jury properly instructed.
          In Laymon, a prospective juror in Laymon’s petit theft case, stated that she had been
disqualified from the jury pool the week before in Laymon’s trial for possession of controlled
substances. She said she was biased against Laymon because of the drug relationship, and stated
that “well, I think he’s guilty already. If he’s guilty last week, he’ll be guilty next week.”
Laymon, 140 Idaho at 769, 101 P.3d at 713. After denying the motion, the district court gave an
elaborate curative instruction which included an explanation that the defendant had not been
convicted in the past week’s controlled substance case because the case was dismissed, based on
the previous court’s decision as to the admissibility of a piece of evidence into that trial; and that
the petit theft case did not involve drugs. The juror who made the comments was removed for
cause and did not sit on the jury.
          On review of the denial of the motion for mistrial this Court noted:
          [T]here is no evidence that the jury here did not follow the trial court’s
          instructions. The potential juror who uttered the statements at issue was removed,
          and there is no evidence that her statements had but a passing, inconsequential
          effect on the remaining pool members. There is also nothing in the record to
          show that the potential juror’s views about the previous week’s aborted trial had a
          continuing impact on Laymon’s petit theft trial.

Id. at 771, 101 P.3d at 715. The factual and harmful information provided to the jury in Laymon
goes well beyond the majority’s description of the case as a mere expression of the juror’s


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opinion of guilt. There, the jury knew as a fact from the court itself that Laymon had been
charged and on trial the week before for a drug offense, and that it had been dismissed based
upon an evidentiary ruling, not a jury acquittal.       Yet, we determined that the information
regarding Laymon’s drug case, as well as the prospective juror’s opinion of guilt, had a “passing,
inconsequential effect on the remaining pool members.” Id. I submit that the information
regarding the past week’s drug case was a specific fact, even though the juror’s expression of
guilt may have been opinion, and thus, great care must be had in drawing a line between fact and
opinion. I further believe that the harm from the fact of the drug case information in Laymon
was greater than any harm from the inference at play here.
       In Ellington, the district court asked the jury pool if anyone had formed an opinion that
Ellington was guilty. A prospective juror indicated that he had “read about it in the papers” and
believed that Ellington was guilty. Ellington, 151 Idaho at 68, 253 P.3d at 742. Another juror
indicated she had a conversation with the victim’s aunt the day after the incident occurred and
was “on her side of him being guilty.” Id. at 69, 253 P.3d at 743. A final juror stated that he had
already formed an opinion based on the news he had read in the papers and seen on television
“such that he could not give Mr. Ellington a fair trial.” Id. at 68-69, 253 P.3d at 742-43. The
Supreme Court stated that “at worst, the jurors who actually deliberated received a second-hand
opinion from the prospective jurors,” and that “they did not receive any specific facts as to why,
other than that the prospective jurors read about it in the paper and in one instance interacted
with a member of the Larsen family.” Id. at 69, 253 P.3d at 743. The Supreme Court looked to
“specific facts” learned and did not engage in a discussion of inference or implication. Id. Yet,
the implication from the prospective jurors is quite clear. As a matter of fact, the two jurors who
learned of the case in the media actually formed their opinion of guilt from that information.
Most assuredly, the implication is that the information reported in two separate media sources
was, at least, suggestive of his guilt.    More important is the implication conveyed by the
prospective juror who spoke with the victim’s aunt. The prospective juror testified that on the
day of the incident, 4 “one of the aunts related the [sic] Larsen family told about this incident and
gave her informative opinion and we had a discussion about it. So I’m unfortunately on her side
of him being guilty.” Id. at 69 n.13, 253 P.3d at 743 n.13. This prospective juror’s opinion of

4
       At one point in the opinion the Court states that the conversation was the day after the
incident and at another it states that the conversation was on the day of the incident.
                                                 8
guilt was based upon information actually provided by a family member of the victim. So it
must be inferred that the information discussed was sufficient to have convinced the aunt and
then the prospective juror of Ellington’s guilt. These are not mere baseless expressions of
opinion.
        Here, after first finding that a drug relationship “could be inferred” from the prospective
juror’s statement, the majority takes it one step further, concluding:        “We hold that the
prospective juror’s assertion of personal knowledge of Pratt’s past association with activity
similar to that with which he was charged, tainted the jury and was sufficient to overcome the
presumption that each of the remaining jurors was impartial.” (Emphasis added). Therein lies
the problem. The fact is the prospective juror conveyed no “specific fact” regarding Pratt at all,
much less an “assertion of knowledge of Pratt’s past [drug] association.”
        So, there is no bright line between assertions of fact and opinion. This case is not
distinguishable from Laymon and Ellington on that basis. An “inference” is not an “assertion of
personal knowledge.” The potential juror’s comment conveyed no fact about Pratt. Moreover,
the statement in this case, just facially compared with the statements in the other cases, is no
stronger in terms of its potential lasting effect on the trial or overcoming the presumption of
impartiality of the sitting jurors.
B.      Curative or Limiting Instruction
        I agree that a definitive curative instruction given immediately following a clearly
inappropriate statement during voir dire goes a very long way toward curing any lasting harm.
An immediate curative instruction is rather easily discerned and given when there is a
contemporaneous motion for mistrial (Laymon); the expression of guilt is in response to a court
question (Ellington); or the prospective juror yells out that the defendant is a pedophile (Kilby).
But the facts here are different and overlooked by the majority.
        Note that the prospective juror was immediately dismissed for cause on motion of the
prosecutor.    It is evident the request from the prosecutor to excuse the juror was for the
prospective juror having personally known Pratt, not for any statement made by that juror.
Defense counsel indicated that the defense had no objection to the dismissal and made no
comment and registered no objection to the statement made by the prospective juror.
        After the district court excused the prospective juror, jury selection continued.        A
replacement juror was seated and, after some discussion, was allowed to reschedule service due

                                                 9
to back problems. Another replacement juror was seated and the court inquired of that juror. At
that point, the court indicated to the prosecutor that questioning could continue, but that a break
would be taken at 10:00 a.m.
        The prosecutor then began asking specific questions of different potential jurors. Then,
the prosecutor asked general questions including whether anyone would find law enforcement
officers more or less credible and if anyone had a friend or family member that had been
involved with controlled substances. Next, the prosecutor turned to asking how the prospective
jurors obtained news. The prosecutor then talked to the jury briefly about the NCIS television
show and expectations of what the jury should expect in the local case. The prosecutor then
asked about previous jury experience, talking to three prospective jurors about their jury
experiences.     The prosecutor then asked if any of the jurors knew anyone in the room.
Thereafter, the district court indicated that it was time to take the recess. The court informed the
potential jurors that “at this point in time, Ladies and Gentlemen, you have not heard any
evidence, so there’s really not much to talk about at this point in time.” The jury panel was then
excused for the break. While the transcript does not indicate elapsed time, it is quite clear that a
substantial amount of time lapsed from when the prospective juror was excused until the recess
was taken.
        It is evident that it was during the morning recess that defense counsel moved for a
mistrial.    The majority states that “the district court did not give a curative instruction to
disregard the prospective juror’s comment.” I fail to see how the court was to effectively,
timely, and specifically do so. Defense counsel said nothing about the statement until the break,
well after substantial proceedings had occurred. At that point, even if the court was requested to
do so, which it was not, it would be virtually impossible for the court to construct a statement-
specific curative instruction without simply restating and highlighting the allegedly offending
statement. What the court could do, short of mistrial, is rely on the more general limiting
instructions, which is exactly, as discussed below, what the court did. Thus, this situation is
unlike the cases discussed above where a contemporaneous motion was made, or the statement
was an expression of guilt in response to the court’s question, or was a pejorative and disruptive
blurt. So, unless this Court is holding that the district court, under these circumstances, was
required to immediately sua sponte give a statement-specific curative instruction, with which I



                                                10
would not agree, then defense counsel’s failure to timely request such an instruction cannot be a
basis for reversing the district court.
        The fact here is that defense counsel argued against any limiting instruction by stating
that he did not feel that there was “a limiting instruction that you can give to the jury that is
going to un-ring that bell essentially saying--or the implication was that he had been in trouble
for similar charges of delivery and that those charges and that event are how he knows
Mr. Pratt.” Aside from the fact that it was too late to go back and address the specific comment,
defense counsel did not even request a more general instruction from the court to the effect that
nothing said in the course of jury selection could be considered by the jury during deliberations.
After considering the arguments, the district court indicated that the statement did not warrant a
mistrial and could be dealt with through limiting instructions. Even though Pratt did not request
any such instructions, the court stated that it was going to give limiting instructions to the jury
once sworn.
        Once the jury was sworn in, the district court took a recess, but first instructed the jury as
follows:
                In the meantime, we really have not had any evidence take place yet
        during the course of this morning, that evidence will start this afternoon, so please
        don’t think about the case at this point in time, and let’s just come back with a
        clean slate this afternoon when we will be able to start hearing the evidence.

Thus, the jurors who sat on Pratt’s case were expressly told that they had not yet heard any
evidence and the trial should start with a clean slate. After the recess, the district court read the
limiting instructions to the jury. Included in those instructions was the following:
                The law requires that your decision be made solely upon the evidence
        before you, neither sympathy nor prejudice should influence you in your
        deliberations. Faithful performance by you of these duties is vital to the
        administration of justice.
                In determining the facts, you may consider only the evidence admitted in
        this trial. The evidence consists of the testimony of the witnesses, exhibits
        offered and received, and any stipulated or admitted facts.

This same instruction was given before the jury deliberated. The Ellington Court expressly
noted that “the impaneled jurors were instructed at the end of voir dire that they were to decide
the case only based on the evidence presented in the courtroom. They were again instructed of
this duty before their deliberations.” Ellington, 151 Idaho at 69, 253 P.3d at 743. We presume


                                                 11
that the jury follows the district court’s instructions. See Kilby, 130 Idaho at 751, 947 P.2d at
424; State v. Hudson, 129 Idaho 478, 481, 927 P.2d 451, 454 (Ct. App. 1996). Even assuming
the jurors who actually sat in Pratt’s case perceived the prospective juror’s comments as
indicating Pratt had previously been involved with controlled substances, and from this would
have used the comment in finding Pratt guilty, the jury was told twice that it had not heard any
evidence during voir dire, and then told to only decide Pratt’s case based on the evidence
presented at trial. Without some other indication that these jurors were biased, in my opinion,
Pratt has failed to overcome the presumption that the jury was impartial.
C.     Continuing Impact on the Trial
       The Ellington Court placed considerable importance upon the fact that the prospective
juror was excused. Ellington, 151 Idaho at 69, 253 P.3d at 743 (“None of the jurors who
expressed the opinions on Mr. Ellington’s guilt that are at issue on appeal actually sat on the
jury.”). In this regard, the Court distinguished a case relied on by Ellington, State v. Hauser, 143
Idaho 603, 150 P.3d 296 (Ct. App. 2006):
       Mr. Ellington here makes no challenge to any specific juror who was not
       dismissed for cause that he believes should have been. Instead he focuses his
       challenge on appeal on the denial of the motion for mistrial, which assigned error
       only in the statements of the three prospective jurors, none of whom sat on the
       jury. Because those prospective jurors were all dismissed, the holding of Hauser
       does not apply here.

Ellington, 151 Idaho at 69 n.14, 253 P.3d at 743 n.14.
       The principal focus of the Ellington opinion appears to be on the “actual” jury. The
Court stated:
       Under the U.S. Supreme Court’s and this Court’s case law, Mr. Ellington has not
       overcome the presumption that the jury was impartial. “Where a defendant does
       not allege or cannot demonstrate that a member of his or her jury was biased or
       prejudiced, a due process challenge must fail.” State v. Santana, 135 Idaho 58,
       64, 14 P.3d 378, 384 ([Ct. App.] 2000).

Ellington, 151 Idaho at 69-70, 253 P.3d at 743-44 (footnote omitted). Thereafter, the Court
analyzed the “only allegations” Ellington provided that “an actual member of the jury” was
biased. That evidence consisted of two actual jury members who had a connection to a physical-
therapy clinic at which a victim had received treatments. The Court held that “particularly
within the framework of Mr. Ellington’s motion for mistrial, he has not shown in any way that


                                                12
these actual jury members had been influenced by the three prospective jurors’ statements during
voir dire.” Id. at 70, 253 P.3d at 744. The same holds true in this case. Pratt has not alleged or
shown in any way that any actual jury member was influenced by the lone statement of the
dismissed prospective juror, and thus, was biased or prejudiced. Thus, Pratt has not overcome
the presumption that the impaneled jurors were impartial or the presumption that they followed
the court’s instructions. The challenged statement did not have a continuing effect on the trial.
Viewed retrospectively, the district court’s decision to deny the motion for mistrial did not
constitute reversible error.




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