IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 35032/35061
STATE OF IDAHO,
CALVIN CHAMP STRANGE,
2009 Opinion No. 53
Filed: July 17, 2009
Stephen W. Kenyon, Clerk
Appeal from the District Court of the Third Judicial District, State of Idaho,
Washington County. Hon. Stephen W. Drescher, District Judge.
Order denying motion for new trial, affirmed.
John Prior, Nampa, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lisa J. Mesler, Deputy Attorney
General, Boise, for respondent.
Calvin Champ Strange appeals from the district court’s denial of his motion for new trial.
In August 2007, Strange was found guilty of possession of a controlled substance, Idaho
Code § 37-2732(c)(1), and possession of drug paraphernalia, Idaho Code § 37-2734(A). Two
months later the district court received a letter from one of the jurors in Strange’s case,
expressing concerns about the way the case was investigated and also the acoustics in the
courtroom.1 After obtaining a copy of this letter from the district court, Strange filed a motion
for new trial pursuant to Idaho Criminal Rule 34 and I.C. § 19-2406. The juror had indicated
At the end of the trial, the district court encouraged jurors to send letters if they had
suggestions for improving the jury service experience.
that she had difficulty hearing all that was said during the trial, as did other members of the jury.
In fact, one gentleman was given an assistive listening device mid-way through the two-day trial.
The district court ordered the release of juror contact information so that Strange could subpoena
the jurors for an evidentiary hearing. At the evidentiary hearing, three jurors, including the one
who wrote the letter, admitted having difficulty hearing during the trial. One was the man who
used the assistive listening device, and another stated that he really only had issues
understanding Strange’s defense counsel. All of the jurors testified that they could hear every
question asked of a witness and all of the witnesses’ answers. The juror who wrote the letter
reaffirmed her belief that Strange was proven guilty beyond a reasonable doubt. The district
court denied Strange’s motion for new trial, and sentenced him to a unified term of five years,
with one and one-half years determinate on the possession charge. This appeal followed.
Strange contends that the district court erred by denying his motion for new trial.2 A
court may grant a new trial if it is “required in the interest of justice.” I.C.R. 34. Although
I.C.R. 34 sets forth the standard for a new trial, I.C. § 19-4206 promulgates the only permissible
substantive bases for the grant of a new trial in a criminal case. State v. Bolen, 143 Idaho 437,
439, 146 P.3d 703, 705 (Ct. App. 2006); see also State v. Cantu, 129 Idaho 673, 675, 931 P.2d
1191, 1193 (1997); State v. Gomez, 126 Idaho 83, 86, 878 P.2d 782, 785 (1994). A trial court
has wide discretion to grant or refuse to grant a new trial. Bolen, 143 Idaho at 439, 146 P.3d at
705; Cantu, 129 Idaho at 674, 931 P.2d at 1192. That discretion is not abused unless a new trial
is granted for a reason that is not delineated in the code or unless the decision to grant the new
trial is contrary to the interest of justice. I.C.R. 34; Bolen, 143 Idaho at 439, 146 P.3d at 705;
Gomez, 126 Idaho at 86, 878 P.2d at 785. On appeal, this Court will not disturb the exercise of
discretion absent a showing of manifest abuse. Cantu, 129 Idaho at 674, 931 P.2d at 1192; State
v. Olin, 103 Idaho 391, 648 P.2d 203 (1982). When a trial court’s discretionary decision is
reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether
In his brief on appeal, Strange lists a second issue for this Court’s consideration--whether
the evidence was sufficient to support a conviction. However, Strange does not mention this
issue again except in a single sentence in his conclusion. A party waives an issue on appeal if
either authority or argument is lacking. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970
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).
Pursuant to Idaho Code, a new trial may be granted:
3. When the jury has separated without leave of the court after retiring to
deliberate upon their verdict, or been guilty of any misconduct by which a fair and
due consideration of the case has been prevented.
4. When the verdict has been decided by lot or by any means other than a fair
expression of opinion on the part of all the jurors.
7. When new evidence is discovered material to the defendant, and which he
could not with reasonable diligence have discovered and produced at the trial.
I.C. § 19-2406. Strange originally moved for a new trial on the basis of newly discovered
evidence, referring to the issues brought forth in the juror’s letter. However, the facts shown at
the evidentiary hearing and relied upon in the district court’s denial of the motion indicated that
the court viewed subsections (3) and (4) of I.C. § 19-4206 as the basis for the motion. To prevail
on a motion for a new trial based upon a claim of jury misconduct “by which a fair and due
consideration of the case has been prevented,” the defendant must present clear and convincing
evidence that juror misconduct has occurred and the trial court must be convinced that the
misconduct reasonably could have prejudiced the defendant. Bolen, 143 Idaho at 439, 146 P.3d
at 705; State v. Reutzel, 130 Idaho 88, 96, 936 P.2d 1330, 1338 (Ct. App. 1997); State v. Seiber,
117 Idaho 637, 640, 791 P.2d 18, 21 (Ct. App. 1989). Where the trial court denies a motion for
new trial after conducting an evidentiary hearing, we defer to the court’s findings of fact. Seiber,
117 Idaho at 640, 791 P.2d at 21.
Idaho courts have not previously considered whether a juror’s inability to hear testimony
constitutes juror misconduct. A juror’s inattentiveness, through sleeping or drawing during
witness testimony, may constitute misconduct. See Bolen, 143 Idaho at 440-41, 146 P.3d at 70607. Here, Strange has failed to show by clear and convincing evidence that the juror’s difficulty
with hearing constitutes misconduct. The complaints from the jurors dealt with what they
considered bad acoustics and a poor sound system. Aware of the problem during trial, the court
instructed defense counsel on separate occasions to speak louder. One juror needed the use of a
listening enhancement device, which was provided. Post trial, the jurors, upon questioning,
indicated that they were able to hear the questions presented to the witnesses at trial as well as
the answers. The difficulty in hearing was not attributed to the jurors. Therefore, the district
court did not err in determining no juror misconduct occurred.
Even if we assume the difficulty with hearing amounted to misconduct, Strange failed to
show he was prejudiced thereby. To establish prejudice, a defendant must show the identity and
duration of the specific testimony, argument or instructions the juror missed. See, e.g., Chubb v.
State, 640 N.E.2d 44, 48 (Ind. 1994); Ratliff v. Commonwealth, 194 S.W.3d 258, 276 (Ky. 2006);
State v. Chestnut, 643 S.W.2d 343, 346-47 (Tenn. Crim. App. 1982); see also State v. Hayes, 17
P.3d 317, 319-21 (Kan. 2001) (reversing trial court’s denial of motion for mistrial based on
juror’s complete inability to hear defendant’s testimony, which violated defendant’s rights to an
impartial jury and due process). In this case, the jurors who had difficulty hearing during the
trial testified that their greatest difficulty was with hearing defense counsel when he was sitting
down at the defense table. Strange failed to identify any specific portion of the trial that the
jurors missed because they were having a hard time hearing defense counsel. The general
complaint expressed by the jurors is insufficient to show prejudice. See, e.g., People v. King,
121 P.3d 234, 241-42 (Colo. Ct. App. 2005); Durham v. State, 867 A.2d 176, 181 (Del. 2005).
The district court did not err in determining that there was no basis to determine that the jurors
were unable to receive and consider fully the evidence presented at trial.
Strange has failed to show by clear and convincing evidence that the jurors committed
misconduct based on difficulties in hearing during the trial. Even assuming that an inability to
hear constitutes misconduct, Strange has not shown any specific portions of the testimony or
argument that the jurors missed which could reasonably have prejudiced him. The district
court’s order denying Strange’s motion for new trial is affirmed.
Chief Judge LANSING and Judge PERRY CONCUR.