State v. Bitz

460 P.2d 374, 93 Idaho 239, 1969 Ida. LEXIS 293

• Court: Idaho Supreme Court
• Decided: October 15, 1969
• Docket: 9793
• Status: Published

Opinions

SPEAR, Justice.

On May 20, T962 the appellant was arrested and charged with first degree burglary in connection with the nighttime burglary of a Montgomery-Ward store in Lewiston, Idaho. Trial was set for October 28, 1963 before the Honorable John W. Cramer, but on October 25, 1963 the appellant filed an affidavit of prejudice pursuant to I.C. § 1-1801 seeking to disqualify Judge Cramer from proceeding further in the case. Judge Cramer, however, was of the opinion that the affidavit was not timely filed and consequently denied it. The trial, over which Judge Cramer presided, resulted in a verdict of guilty of first degree burglary. On appeal this court reversed the conviction and remanded the case for a new trial on the ground that the appellant’s affidavit of prejudice was timely filed and consequently Judge Cramer was disqualified to preside. State v. Bitz, 89 Idaho 181, 404 P.2d 628 (1965).

Following the reversal of his conviction, and prior to the new trial, the appellant on August 23, 1965 filed a petition for a writ of habeas corpus, seeking his release on the ground that the Nez Perce County Sheriff and warden of the state penitentiary unnecessarily delayed his arraignment following this court’s order for a new trial. Judge Paul W. Hyatt, to whom the case had been assigned for the new trial, issued a writ of habeas corpus, and following a return on the writ a hearing was held on August 25, 1965, at the conclusion of which an order was entered quashing the writ.

Prior to trial, but subsequent to the hearing on .the petition for habeas corpus, the appellant, seeking to disqualify Judge Hyatt, filed an affidavit of prejudice pursuant to I.C. § 1-1801 alleging that he had reason to believe that Judge Hyatt was prejudiced against him. No specific grounds for this belief were specified, but on October 5, 1965 a supplemental affidavit was filed specifying the following discussion between the court and appellant, which occurred on August 24, 1965, the day prior to the habeas corpus hearing, as an instance showing actual prejudice on the part of Judge Hyatt:

“MR. BITZ: Well, if I feel we can’t agree on my defense, I’m sure I’ll petition the Court for another Attorney.

“THE COURT: Well, you’re not going to get one. I’m giving you your choice now. You’re not going to monkey around with me at all. I’ll give you your choice now. Whoever I appoint is going to stay put in the case. I don’t care whether you like it or don’t like it.

“MR. BITZ: Well, that is the same kind of justice I got here the last time.

“THE COURT: You got more justice than you were entitled to when the Supreme Court sent it back for new trial. However, you are going to get a trial and you will get a fair trial. The question we are talking about is counsel.”

Judge Hyatt refused to disqualify himself, and the case proceeded to trial before a jury on October 12, 1965. The appellant was again convicted of first degree burglary and was sentenced to a maximum term of ten years in the Idaho state penitentiary. He has appealed to this court from the judgment of conviction, assigning three errors.

Appellant first contends that the trial judge erred in refusing to acknowledge his affidavit of prejudice and disqualify himself from hearing the case. I.C. § 1-1801 provides in part that

“A judge cannot act as such in any of the following cases:

(4) When either party makes and files an affidavit as hereinafter provided, that he has reason to believe, and does believe, he cannot have a fair and impartial hearing or trial before a district judge by reason of the bias or prejudice of such judge.”

The affidavit need not state any grounds for the belief, and no hearing on the truth or falsity of the affidavit is required. As this court stated in Price v. Featherstone, 64 Idaho 312, 130 P.2d 853, 143 A.L.R. 407 (1942),

“Under the provisions of Sec. 1-1801, I.C.A., as amended, supra, the filing of the affidavit of prejudice, charging bias or prejudice on the part of the judge, is sufficient to disqualify him without any hearing as to whether the affidavit is true or false, and regardless of whether he is prejudiced as a matter of fact, and deprives him of all jurisdiction except to make a proper order of removal of the cause or calling in another judge as required by the statute. The truth of the affidavit filed is not what disqualifies the judge, but the affidavit itself.” (pp. 316-317 of 64 Idaho, p. 855 of 130 P.2d)

To.the same effect is Davis v. Irwin, 65 Idaho 77, 139 P.2d 474 (1943).

There are, however, certain limitations on the use of this procedure. No affidavit may be filed in a case “after any contested matter in relation to such litigation has been submitted for decision to any judge sought to be disqualified.” I.C. § 1-1801; Cooper v. Wescow Builders, Inc., 76 Idaho 278, 281 P.2d 669 (1955); Ex Parte Medley, 73 Idaho 474, 253 P.2d 794 (1953) ; Aker v. Coleman, 60 Idaho 118, 88 P.2d 869 (1939). And no more than one judge can be disqualified in the same action or proceeding. I.C. § 1-1801.

The State contends in the present case that the appellant’s petition for a writ of habeas corpus was submitted to Judge Hyatt for decision prior to the filing of the affidavit of prejudice and therefore the affidavit was not timely filed under I.C. § 1-1801. The State argues that the hearing on the petition for habeas corpus was a “contested matter in relation to such litigation.” We do not agree. It is quite well settled that in criminal matters a habeas corpus proceeding is a civil proceeding entirely independent of the criminal action. Ex Parte Tom Tong, 108 U.S. 556, 27 L. Ed. 826, 2 S.Ct. 871 (1883); France v. Superior Court, 201 Cal. 122, 255 P. 815, 52 A.L.R. 869 (1927); Stewart v. Bishop, 403 F.2d 674 (8th cir. 1968); Oates v. People, 136 Colo. 208, 315 P.2d 196 (1957) ; People v. McCager, 367 Mich. 116, 116 N.W.2d 205 (1962) ; State ex rel. Nelson v. Rigg, 260 Minn. 57, 108 N.W.2d 723 (1961). For this reason it is our opinion that appellant was not precluded from filing an affidavit of prejudice merely because Judge Hyatt presided over the habeas corpus hearing which involved none of the issues which would be before the court in the trial of the case.

Appellant is, however, precluded from filing his statutory affidavit of prejudice by virtue of the clause providing that no more than one judge can be disqualified in the same action or proceeding. Appellant seeks to avoid the impact of this clause by pointing to that section of the statute which states that “ * * * where a new trial is granted or ordered by either the district court or the Supreme Court, such affidavit may be filed as in the first instance.” The appellant has, however, overlooked the fact that this clause is an exception to the clause prohibiting the filing of an affidavit after the court has already considered a contested matter in relation to the litigation. No exception appears to the clause stating that only one judge may be disqualified in the same action or proceeding.

A new trial is not a new action or proceeding. 66 C.J.S. New Trial § 1, p. 62; Jackson v. Jackson, 69 Ohio App. 55, 42 N.E.2d 932 (1941); Central Surety & Ins. Corp. v. Atlantic Nat. Ins., 178 Neb. 226, 132 N.W.2d 758 (1965). Rather, it is merely a “reexamination of an issue of fact in the same court after a trial * *.” I.C. § 10-601. This reexamination is a continuation of the original action, and the appellant, having already disqualified Judge Cramer, is therefore not entitled to disqualify Judge Hyatt under I.C. § 1-1801.

Our decision in this regard, contrary to appellant’s assertions, does not force a defendant to proceed to trial before a biased judge. Although I.C. § 1-1801 provides a defendant with only one unquestioned disqualification, this provision is supplemented by Idaho Const. Art. I, § 18, which authorizes a change of judges whenever actual prejudice against a defendant is established. State v. Waterman, 36 Idaho 259, 210 P. 208 (1922); Davis v. Irwin, supra; Bell v. Bell, 18 Idaho 636, 111 P. 1074 (1910); Day v. Day, 12 Idaho 556, 86 P. 531 (1906). Appellant would have been entitled to disqualify Judge Hyatt if his supplementary affidavit were sufficient to prove the existence of actual prejudice or bias. An examination of the record, however, fails to substantiate the appellant’s allegations of prejudice. Appellant relies heavily upon the discussion quoted above, but this is the only occurrence which even remotely supports his allegations. The record as a whole on the other hand indicates that the appellant was afforded a fair and impartial trial.

Appellant’s second assignment of error is that the trial court erred in refusing to grant his motion for a change of venue on the grounds that prejudicial news publicity prior to trial made it impossible for him to receive a trial by a fair and impartial jury in Lewiston. Appellant documented his motion for a change of venue with several newspaper clippings and with an affidavit from a Lewiston resident stating that he heard a member of a group of entertainers at a nightclub in Lewiston refer to another member of the group as “bad as Bitz,” which statement provoked mirth and laughter among the patrons. The State, on the other hand, submitted various affidavits from other Lewiston residents stating that they did not understand the phrase “bad as Bitz” and that they believed the appellant could receive a fair trial in Lewiston.

I.C. § 19-1801 authorizes a change of venue in a criminal action when it appears that a defendant cannot receive a fair and impartial trial in the county in which the indictment is pending. This court has held on numerous occasions, however, that a change of venue rests within the sound discretion of the trial court. State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967); State v. Cypher, 92 Idaho 159, 438 P.2d 904 (1968) ; State v. McLennan, 40 Idaho 286, 231 P. 718 (1925); State v. Hoagland, 39 Idaho 405, 228 P. 314 (1924). Publicity itself does not require a change of venue. Where it appears that the defendant actually received a fair trial and that there was no difficulty experienced in selecting a jury, refusal to grant a change of venue is not a ground for reversal. State v. Cypher, supra; State v. McKeehan, supra; State v. McLennan, supra; People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208 (1968).

In determining whether the appellant actually received a fair trial, several factors are important. It is significant, although not controlling, that the appellant’s affidavit indicating prejudice in the community was met by an equal or greater number of affidavits indicating an absence of prejudice. State v. McLennan, supra. It is also significant that of the twelve jurors selected, four had read nothing about the case, the other eight had merely scanned the reports, and all twelve stated that they had formed no opinion as to the guilt or innocence of the appellant. State v. Krampotich, 163 N.W.2d 772 (Minn. 1968) ; State v. McLennan, supra. Additionally it should be noted that the appellant did not challenge for cause any of the jurors finally selected. If appellant were dissatisfied with the jury and believed that any juror was prejudiced against him, he should have raised the issue by challenging that juror for cause. His failure to do so indicates a satisfaction with the jury as finally constituted. Overton v. United States, 403 F.2d 444 (5th cir. 1968) ; People v. Speck, supra; People v. Gendron, 41 Ill.2d 351, 243 N.E.2d 208 (1968); State v. Ray, 274 N.C. 556, 164 S.E.2d 457 (1968).

An examination of the newspaper clippings which were made a part of the record indicates that the publicity in the present case does not compare in kind or quality to the publicity in Sheppard v. Maxwell, 384 U.S. 333, 16 L.Ed.2d 600, 86 S.Ct. 1507 (1966), relied upon by appellant. Moreover, the bulk of the publicity occurred prior to the first trial, which was slightly more than two years before the trial from which appellant appeals. Under such circumstances, much of the prejudicial impact, if any, of these articles was lost. State v. Cypher, supra; People v. Speck, supra; People v. Gendron, supra. The articles which appeared shortly before the second trial were, by and large, merely factual accounts of the arraignment and pre-trial events. There were no editorials or opinions expressed in the newspapers which aroused the feelings of passion of the public. State v. Hoagland, supra; State v. Krampotich, supra.

Considering the record as a whole, including the transcript of the voir dire examination, it appears that there was no unusual difficulty in selecting the jury and that the defendant received a fair trial. Therefore, we cannot hold the court’s denial of a change of venue an abuse of the court’s discretion.

Appellant next contends that the trial court erred in restricting his voir dire examination of prospective jurors. Appellant’s counsel attempted to ask each juror whether he understood the doctrines of reasonable doubt and presumption of innocence and the defendant’s constitutional right not to produce evidence in his own behalf, but rather to force the state to prove his guilt beyond a reasonable doubt. The State objected to these questions, and the court sustained the objection. Each question was framed in terms of an instruction on the particular issue of law to which it was directed and was designed to determine whether the juror would apply that principle of law.

The general rule regarding voir dire examination was stated by this court in State v. McKeehan, 91 Idaho 808, 430 P. 2d 886 (1967):

“The rule in this jurisdiction is that great latitude is allowed in the examination of veniremen upon their voir dire for the purposes of determining whether there is sufficient ground to challenge the veniremen for statutory cause, I.C. §§ 19-2017 to 19-2022; or whether it is expedient to challenge them peremptorily, I.C. §§ 19-2015 and 19-2016. The scope of voir dire, examination of veniremen in a criminal case, however, is a matter resting in the discretion of the trial court, the exercise of which will not be reversed except in case of abuse.” 91 Idaho at 819, 430 P.2d at 897.

Appellant contends that his questions were designed to determine whether it would be expedient to peremptorily challenge a juror, which is a permissible purpose under MeKeehan, supra. The State, on the other hand, contends that the scope of voir dire for the purpose of laying a foundation for a peremptory challenge should be more limited than the scope of voir dire examination designed to elicit a basis for a challenge for cause. People v. Edwards, 163 Cal. 752, 127 P. 58 (1912). The main defect in appellant’s questions, however, is not that they are designed more to reveal a reason for a peremptory challenge than to establish a basis for a challenge for cause, but rather that they were designed, not to elicit factual information from a juror, but to inquire into his knowledge of the law.

In State v. Hoagland, supra, this court had occasion to consider the propriety of questions for voir dire examination which were surprisingly similar to the questions involved here. There this court held that

“Counsel has no right to ask a juror as to whether he believes in any principle of law applicable to the case as the juror is bound to take the law from the court. * * * The jury is bound by the instructions of the court. * * * C.S., § 8930, names the grounds for challenge for cause, and any and all questions which would show or tend to show that any of the grounds named existed should be permitted; but as the question propounded would have no tendency to elicit information bearing on the grounds named in the statute, and would have no legitimate bearing . on the issue of whether the venireman would be competent or incompetent to try the cause, but was directed to his knowledge of the law and whether he would follow the instructions of the court, the objection was properly sustained.” (39 Idaho 417-418, 228 P. 318.)

Similarly, the courts in other jurisdictions have held that questions designed to inquire into a juror’s knowledge of the law and his willingness to follow the court’s instructions constitute improper voir dire examination. Carder v. State, 5 Md.App. 531, 248 A.2d 495 (1968); Stone v. United States, 324 F.2d 804 (5th cir. 1963); Williams v. Goodman, 214 Cal.App.2d 856, 29 Cal.Rptr. 877 (1963) ; Harrell v. Commonwealth, 328 S.W.2d 531 (Ky.App.1959); Knox v. State, 400 S.W.2d 750 (Tex.Cr. App.1966).

This court has held that a defendant is entitled to ask a prospective juror whether the mere accusation against the defendant raises any prejudice in his mind. Mattson v. Bryan, 92 Idaho 587, 448 P.2d 201 (1968). In the present case the appellant was allowed to ask this question, which, to a large extent, elicited the same information as the rejected question concerning the presumption of innocence would have elicited.

It is well settled that the scope of voir dire examination is within the discretion of the trial judge and that his ruling will not be disturbed except for a manifest abuse of discretion. State v. Pettit, 33 Idaho 326, 193 P. 1015 (1920) ; State v. Hoagland, supra. Since the only questions disallowed by the trial court were properly disallowed on the ground that they were directed to the juror’s knowledge of the law, no abuse of discretion appears. There was, therefore, no error in limiting appellant’s voir dire examination in this manner.

Conviction and judgment affirmed.

McFADDEN, C. J., and HAGAN, D. J., concur.