State v. David Leon Johnson, 414 P.3d 234

Background

Defendant David L. Johnson was indicted for lewd conduct with his then-6–7-year-old daughter; tried in 2006 (convictions vacated on appeal for admission of 404(b) evidence) and retried in 2011, convicted on two counts and sentenced to unified 15-year terms with 5 years fixed.
At the 2011 trial, the court informed the venire that there had been a prior trial and that the Idaho Supreme Court had reversed and remanded; defense counsel did not object during the preliminary jury-selection hearing and later passed the jury for cause.
During the State’s case a detective testified he “tried to interview Mr. Johnson,” which defense objected to as an impermissible comment on Johnson’s invocation of the right to remain silent; the court struck the testimony, gave a curative instruction, and denied a mistrial.
A State witness (Wilson) testified after consulting a report he had printed the day before trial; defense objected under I.R.E. 612 as an improper refresh of recollection; the court allowed the testimony but later the same facts were admitted via the defendant’s own calendar.
Defense also argued the State committed a discovery violation by failing to disclose Wilson’s report; the court found a violation but the Supreme Court held the State never had possession of the report so no Rule 16(b)(4) violation occurred.

Issues

Issue	Plaintiff's Argument (Johnson)	Defendant's Argument (State / Court)	Held
Court disclosed prior trial/appeal to venire	Disclosure created implied juror bias and denied right to impartial jury	Statement only noted a prior proceeding, not a conviction; counsel had opportunities to cure and did not timely object; jurors were questioned and instructed	No fundamental error; disclosure not equivalent to revealing a prior conviction; waiver by passing the jury for cause
Detective’s comment that he “tried to interview” Johnson (mistrial)	Comment impermissibly invited inference from defendant’s silence; mistrial required	Trial court promptly struck the testimony, sustained objection, gave curative instruction; no evidence jury disobeyed	No reversible error in denying mistrial; curative instruction cured the prejudice
Prosecutorial misconduct from elicited comment on silence	Prosecutor’s questioning/implied elicitation of the detective’s comment amounted to misconduct	State argued question was foundational; answer was gratuitous and not solicited but curative instruction given	Misconduct occurred (imputed to State) but was harmless given curative instruction
Witness refreshed from report (I.R.E. 612) and related discovery claim	Wilson had no present recollection; testifying from a report violated Rule 612 and discovery rules; mistrial required	Court treated testimony as refreshing recollection; later the same information was admitted via Johnson’s calendar; State never had the report so no Rule 16 violation	Allowing testimony after improper refresh was error, but harmless because identical evidence was later properly admitted; no Rule 16 violation by State

Key Cases Cited

State v. Perry, 150 Idaho 209 (error-preservation and fundamental-error standard)
State v. Lankford, 162 Idaho 477 (prior trial/appeal mention not equivalent to disclosure of conviction)
State v. Ellington, 151 Idaho 53 (prosecutorial misconduct where officer’s unsolicited comment on defendant’s silence imputed to State)
State v. Parker, 157 Idaho 132 (detective testimony commenting on defendant’s silence constitutes prosecutorial misconduct)
Thomson v. Olsen, 147 Idaho 99 (standards for refreshing witness recollection under I.R.E. 612)
Baker v. Boren, 129 Idaho 885 (improper use of recently prepared notes to testify rather than true refreshing of recollection)
State v. Rose, 125 Idaho 266 (striking inadmissible testimony and curative instruction can eliminate prejudice)
Greer v. Miller, 483 U.S. 756 (presumption that jury follows curative instructions unless overwhelming probability otherwise)