So during a hearing without a jury present, the court decided that the evidence could come in because it would explain why C.A. had held off in reporting the abuse. The court reasoned that she did not feel safe to disclose unless Defendant was in jail. Nobody would tell the jury why defendant was incarcerated. Furthermore, the jury would not be informed of the Defendant’s prior conviction for sexual assault on a minor, and other allegations of sexual assault on children.
First trial was in January 2016, but the jury could not reach a unanimous verdict. Defendant was re-tried in May 2016. During jury selection, the State asked whether any of the potential jurors had served on a jury beforehand, and if that experience left such a bad taste in their mouth that they could not be fair and impartial this time. Let’s face, some (and I’m talking a select few) people like jury duty. But most don’t like it, and if you hated it so much that you’re not going to give everybody a fair shake this time, the lawyers want to know.
The defense objected to the State’s questioning, saying that the questions were aimed to discover whether any of the current potential jurors who had already served on a jury were frustrated by the process. The judge ruled that it wasn’t a “pro-State” or “pro-defense” question, but was neutral. And really, if you’re the defendant, you don’t want grumpy people on the jury who hate the system anyway.
The Defendant moved for a mistrial, saying that the State’s questioning prejudiced the jury. The State’s question, in its entirety was: “So of the folks that were on the jury, the—was there anything that came out in the newspaper after, that you read about the trial, that you were completely in disbelief that you didn’t know that when you were in the trial, or that irked you that you didn’t know that, or—so nothing about that process that—because the judge is going to instruct you to not read anything and not follow any newspaper, not to research this independently, and sometimes people are not happy about that, that they can’t look up what happened, and then sometimes they hear things after that they just don’t understand why they weren’t told some of the things they read about. So nobody had that experience where you felt like this was not a fair and impartial jury process?”
The Defendant argued that the question made it seem like the process withheld prejudicial information from the jury. For instance, a simple internet search would have shown that Defendant had a prior conviction. Even if the jurors did not conduct their own research, the question created a “prejudicial suspicion” in the juror’s mind. The court ruled that unless a juror actually got inappropriate information from another source, a mistrial was not warranted.
Prior to swearing in the jury, the court asked if anyone had learned anything about the defendant since they were selected. There was no response. Following the trial, Defendant was convicted and sentenced to serve 4 to 6 years. During the trial, testimony about Defendant’s prior incarceration came out, mainly that Defendant’s children did not want to see him, and that C.A. was upset when learning about his release for fear that she would have contact with him.
The next question is whether the trial court erred by allowing in information of the Defendant’s incarceration. The general rule is that you can’t let in information of prior bad acts in order to show that the Defendant acted this way again. So for instance, someone is on trial for burglary, you can’t introduce evidence that this person was convicted of burgling another home. The jury will think, “well, they did it before, so they must have done it now” and convict on that basis. You may, however, introduce this evidence if you’re doing it to show motive, opportunity, intent, etc. Here, the State offered it to explain C.A.’s silence about the abuse while Defendant was incarcerated.
Here’s the deal: all of the prosecution’s evidence in a criminal case is prejudicial to some extent. It reminds me of the scene from “Liar Liar” where Jim Carrey objects and the judge asks why and Carrey says, “Because this is devastating to my case!” If prejudice was the threshold for keeping stuff out, we’d never have a criminal trial, ever. The question is whether it is unfairly prejudicial to the defendant. Is the State seeking this evidence to get sympathy from the juror to convict the defendant? To make the jury mad and want to punish? So the trial court needs to think about why the State is seeking to introduce this evidence, if it’s probative of some fact, and the potential to make the jury angry towards the Defendant.
In this case, the trial court decided that without the information about the incarceration, the jury would be confused as to why C.A. came forward when she did. It explained the gap in reporting. Without it, the jury would be distracted by the missing fact and not focused on the evidence. Beyond that, the trial court instructed the jury as to the limited purposed of the evidence and that they should not consider it as evidence of the defendant’s character. Specifically, that his prior incarceration was not relevant, and nobody should speculate about it. Absent a showing otherwise, everyone assumes the jury followed that instruction.
The last question is whether or not Defendant was given a fair trial because the State was allowed to impeach the defendant’s only witness. His witness was a woman who was in Defendant’s home quite a bit and never saw any interactions between Defendant and the children of molestation. The State pointed out that this witness did not know about her own daughter’s molestation. The court allowed the question but no more on that topic.
Since the trial court has broad discretion in determining the scope of cross examination, no reversal on that question. The question was aimed to show the witness was not as observant as she thought she may be. The single question was fine.
Defendant’s conviction and sentence are affirmed.