State v. Baay ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 47371
STATE OF IDAHO, )
) Filed: November 30, 2020
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
)
KARL RICHARDSON, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Samuel Hoagland, District Judge.
Judgment of conviction for grand theft and being a persistent violator, affirmed.
Randall S. Barnum of Barnum Law, PLLC, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
General, Boise, for respondent.
________________________________________________
LORELLO, Judge
Karl Richardson appeals from his judgment of conviction for grand theft and being a
persistent violator. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Richardson was charged with grand theft, I.C. §§ 18-2403(1) and 18-2407(1)(b), and being
a persistent violator, I.C. § 19-2514, for taking a boat, a boat trailer, and an outboard motor. At
trial, an officer testified he gave Richardson Miranda1 warnings during an interview. When the
prosecutor asked the officer why he administered Miranda warnings, the officer testified he was
1
See Miranda v. Arizona, 384 U.S. 436 (1996).
1
planning on taking Richardson into custody at the end of the interview because Richardson had an
outstanding arrest warrant for an unrelated matter.
Richardson moved for a mistrial, arguing he was prejudiced by the officer’s mention of the
unrelated arrest warrant. The district court declined to decide the motion at that time. At the
beginning of the next day of trial, the district court denied Richardson’s motion and indicated it
would issue a curative instruction. At the close of evidence, the district court instructed the jury
to consider the mention of the arrest warrant only as an explanation for the officer’s actions during
the interview and not to consider it for purposes of determining guilt. As part of the instruction,
the district court informed the jury that the arrest warrant was for Richardson’s failure to appear
for a minor traffic offense.
As part of the State’s case-in-chief, one of the victims testified he had received a fishing
knife from his father and that this knife, along with a fifty-year-old tackle box, had been inside the
boat when it was taken. In closing argument, the prosecutor related a personal story about how
his grandfather had given him a fishing knife and how he had many memories associated with this
knife. The prosecutor stated he thought of this whenever the victim talked about the knife the
victim had received from his father. The prosecutor argued that the victim’s knife and tackle box,
though trivial, were irreplaceable. Richardson did not object to this argument.
The jury found Richardson guilty of grand theft and the persistent violator sentencing
enhancement. Richardson moved for a new trial, again arguing that the officer’s mention of the
arrest warrant was prejudicial. The district court denied the motion. Richardson appeals.
II.
STANDARD OF REVIEW
In criminal cases, motions for mistrial are governed by I.C.R. 29.1. A mistrial may be
declared upon motion of the defendant when there occurs during the trial an error or legal defect
in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the defendant
and deprives the defendant of a fair trial. I.C.R. 29.1(a). Our standard for reviewing a district
court’s denial of a motion for mistrial is well established:
[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.
2
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. Urquhart, 105 Idaho 92, 95, 665 P.2d 1102, 1105 (Ct. App. 1983).
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 whether the lower court: (1) correctly perceived the issue as one of discretion; (2) acted
within the boundaries of such discretion; (3) acted consistently with any legal standards applicable
to the specific choices before it; and (4) reached its decision by an exercise of reason. State v.
Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).
Generally, issues not raised below may not be considered for the first time on appeal. State
v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). However, when a defendant alleges that
a constitutional error occurred at trial and the alleged error was not followed by a contemporaneous
objection, the claim of error must be reviewed under the fundamental error doctrine. State v.
Miller, 165 Idaho 115, 119, 443 P.3d 129, 133 (2019).
III.
ANALYSIS
Richardson argues the district court erred in denying his motion for a mistrial and his
motion for a new trial. Richardson also asserts the State committed prosecutorial misconduct
during closing argument amounting to fundamental error. The State responds that the district court
correctly denied the motion for a mistrial because there was no error and that, even if there was,
the error was harmless. The State also contends that the district court did not err in denying
Richardson’s motion for a new trial. Finally, the State asserts that the prosecutor did not engage
in misconduct and that, even if part of the prosecutor’s closing argument was improper, Richardson
has failed to meet his burden of showing fundamental error. We hold that Richardson has failed
to show the district court erred in denying both his motion for a mistrial and his motion for a new
trial and has failed to show fundamental error stemming from the prosecutor’s closing argument.
3
A. Motion for a Mistrial
Richardson asserts the State introduced error when the officer testified about Richardson’s
arrest warrant and that the district court erred by not promptly striking the testimony and by waiting
until the close of evidence to issue a curative instruction. In response, the State argues that the
officer’s testimony about the arrest warrant was admissible and, therefore, not error because it
explained why the officer gave Richardson Miranda warnings. The State further contends that
Richardson did not preserve his claims that the district court was required to strike the testimony
and immediately issue a curative instruction. Finally, the State argues that any error was harmless.
We hold that the officer’s testimony about the arrest warrant was error but, because the error was
harmless, it does not warrant reversal.
The threshold inquiry is whether the State introduced error. State v. Shepherd, 124 Idaho
54, 57, 855 P.2d 891, 894 (Ct. App. 1993). Evidence of a past crime is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted in accordance
with the character but may be admissible for another purpose. I.R.E. 404(b). Evidence of an
individual’s status as a probationer or parolee is evidence of a prior crime for purposes of
I.R.E. 404(b). State v. Jones, 167 Idaho 353, 359, 470 P.3d 1162, 1168 (2020). The State contends
that the officer’s mention of the arrest warrant was not error because it was not offered to prove
Richardson’s criminal propensity but, instead, to explain why the officer gave Miranda warnings.
In support of its position, the State cites State v. Yakovac, 145 Idaho 437, 180 P.3d 476 (2008),
which held that testimony regarding arrest warrants for a defendant was relevant to explain the
police officers’ actions. This holding from Yakovac, however, was recently called into question
by Jones. The two-justice lead opinion in Jones rejected the State’s assertion that Yakovac stood
for the broad proposition that “evidence is always relevant in showing the propriety of a search
conducted by law enforcement.” Jones, 167 Idaho at 360, 366, 470 P.3d at 1169 (Burdick, C.J.,
lead opinion). Rather, the lead opinion articulated the standard as follows: “when facts arise in a
case that give the appearance of improper police conduct, but additional evidence exists that, if
admitted at trial, would help demonstrate the propriety of the police conduct, such evidence may
be relevant for that non-propensity purpose.” Jones, 167 Idaho at 363, 470 P.3d at 1172. The lead
opinion further distinguished the relevance analysis under I.R.E. 404(b) from the res gestae
doctrine the Court rejected in State v. Kralovec, 161 Idaho 569, 388 P.3d 583 (2017). The lead
4
opinion explained that the “holding in Kralovec does not make all evidence that would fall within
the definition of res gestae at common law inadmissible. Rather, Kralovec explains that the Idaho
Rules of Evidence govern the admissibility of evidence, rather than common law principles.”
Jones, 167 Idaho at 363, 470 P.3d at 1172. In other words, “[e]vidence that would have been
considered res gestae at common law is admissible only if it meets the requirements of the Idaho
Rules of Evidence.” Id. However, the three remaining justices in Jones issued a separate opinion,
concluding that Yakovac was effectively overruled by the Court’s opinion in Kralovec. See Jones,
167 Idaho at 366-67, 470 P.3d at 1175-76 (Stegner, J., concurring).
In Jones, evidence of the defendant’s probationary status was admitted “to provide context
for [a] search.” Id. at 360, 470 P.3d at 1169 (Burdick, C.J., lead opinion). The two-justice lead
opinion, applying its test for relevance of such evidence under I.R.E. 404(b), determined that
evidence of the defendant’s probationary status was relevant to explain why police officers had
searched the defendant’s underwear--without knowing of the probationary status and the
defendant’s waiver of his right against unreasonable searches, “the jury would be left wondering
why the police suddenly conducted such an invasive search of [the defendant’s] person.” Jones,
167 Idaho at 360, 470 P.3d at 1169.
The three-justice concurrence disagreed and wrote that “nothing about the fact of probation
is probative or material to the State’s burden of establishing the elements of the crimes with which
[the defendant] was charged.” Id. at 366, 470 P.3d at 1175 (Stegner, J., concurring). In the
concurrence’s view, because the “contextual justification” in Yakovac had been rejected by
Kralovec, evidence of the defendant’s probationary status was inadmissible. Jones, 167 Idaho at
367, 470 P.3d at 1176.
Although the State acknowledges Jones,2 it does not advance any argument for why an
explanation of the officer’s Miranda warnings was necessary to avoid the appearance of
impropriety. Unlike Jones, where a search of the defendant’s underwear would seem
unconstitutional absent some explanation, here the officer would appear to be complying with
2
With respect to Jones, the State “acknowledges that a majority of the Idaho Supreme Court
recently called Yakovac into question,” but contends that “Yakovac has not been overruled and is
still binding precedent.”
5
constitutional requirements by giving Miranda warnings. The State has failed to show that there
was an appearance of impropriety that had to be avoided by explaining the officer’s actions. As
such, the State has failed to satisfy the criteria articulated by the lead opinion in Jones, making the
testimony about the arrest warrant irrelevant and inadmissible. See Jones, 167 Idaho at 360, 470
P.3d at 1169 (Burdick, C.J., lead opinion). The State’s argument also fails under the view
expressed by the three-justice concurrence as, under that view, evidence is irrelevant if offered
solely to explain an officer’s actions. See id. at 366, 470 P.3d at 1175 (Stegner, J., concurring).
Applying both the lead opinion and the concurrence in Jones, the State introduced error when the
officer testified that Richardson had an arrest warrant.
Error is not reversible unless it is prejudicial. State v. Stell, 162 Idaho 827, 830, 405 P.3d
612, 615 (Ct. App. 2017). The Idaho Supreme Court clarified the harmless error standard for an
objected-to, nonconstitutionally-based error in State v. Garcia, 166 Idaho 661, 462 P.3d 1125(2020). This standard requires weighing the probative force of the record as a whole while
excluding the erroneous evidence and at the same time comparing it against the probative force of
the error.3 Id. at 674, 462 P.3d at 1138. The reviewing court must take into account what effect
the error had or reasonably may have had on the jury (in the context of the total setting) and in
relation to all else that happened, which necessarily includes the evidence presented. Kotteakos v.
United States, 328 U.S. 750, 764 (1946).
We first consider the probative force of the error. A district court’s curative instruction,
while not necessarily dispositive, is a factor to consider when determining the probative force of
the error. State v. Watkins, 152 Idaho 764, 767, 274 P.3d 1279, 1282 (Ct. App. 2012). On appeal,
we presume that the jury followed the district court’s instructions. See State v. Kilby, 130 Idaho
3
We recognize that Garcia dealt with an objected-to, nonconstitutionally-based error that,
when shown, shifts the burden to the State of demonstrating that the error is harmless beyond a
reasonable doubt. Garcia, 166 Idaho at 663, 462 P.3d at 1137. This type of error differs
categorically from a motion for a mistrial, where there is no burden shifting in the harmless error
analysis. See, e.g., Urquhart, 105 Idaho at 95, 665 P.2d at 1105. However, the two share common
roots in the harmless error standard articulated in Chapman v. California, 386 U.S. 18 (1967). See
Garcia, 166 Idaho at 663, 462 P.3d at 1137; Urquhart, 105 Idaho at 95, 665 P.2d at 1105. As the
Idaho Supreme Court recently noted, Chapman’s harmless error standard has been modified by
Yates v. Evatt, 500 U.S. 391 (1991). Garcia, 166 Idaho at 664, 462 P.3d at 1138. We follow suit
by recognizing that Yates modifies Chapman’s harmless error standard in the mistrial context.
6
747, 751, 947 P.2d 420, 424 (Ct. App. 1997); State v. Hudson, 129 Idaho 478, 481, 927 P.2d 451,
454 (Ct. App. 1996). The district court instructed the jury as follows:
During the course of the trial, you heard testimony from an officer that
referenced an outstanding arrest warrant for [Richardson]. It involved his failure
to appear for a minor traffic offense and is irrelevant to the matter set before you.
It was given merely to explain the officer’s actions at the time. You are not to
consider it as evidence of guilt in this case and it should not be mentioned or
considered in your deliberations.
Richardson acknowledges that a jury is presumed to follow jury instructions, but argues
the district court erred by failing to promptly issue a curative instruction.4 He asserts that the delay
between the officer’s testimony and the curative instruction meant the jury “was allowed to view
all evidence subsequent to [the officer’s] testimony through a lens colored by evidence that
[Richardson] had an outstanding warrant for his arrest and that he would be taken into custody for
that offense.”5 The State argues that Richardson failed to preserve this argument because he did
not make such a request but, instead, suggested that an immediate curative instruction would not
be helpful. We agree that the argument Richardson is making on appeal is not preserved because
the record reflects he took a different view of the propriety of a curative instruction than the one
he is taking on appeal. See State v. Garcia-Rodriguez, 162 Idaho 271, 275, 396 P.3d 700, 704
(2017) (stating that appellate court review is limited to the evidence, theories, and arguments that
were presented below). Moreover, Richardson ultimately agreed to the instruction given, therefore
inviting any claim of error related to the instruction. See State v. Atkinson, 124 Idaho 816, 819,
4
Richardson also asserts the district court should have struck the officer’s testimony about
the arrest warrant. As the State correctly notes, Richardson did not move to strike this testimony.
While addressing Richardson’s motion for a mistrial, the prosecutor mentioned the possibility of
striking the testimony but did not make a motion to strike the testimony. Generally, issues not
raised below may not be considered for the first time on appeal. Fodge, 121 Idaho at 195, 824
P.2d at 126. Richardson has failed to preserve his argument that the district court erred by not
striking the testimony.
5
Richardson faults the district court for waiting four days before ruling on his motion for a
mistrial and giving a curative instruction. This is somewhat misleading. Richardson moved for a
mistrial on a Friday and trial did not resume until the following Tuesday. While this was a four-
day period, the district court ruled on the motion and issued a curative instruction the next trial day
after Richardson moved for a mistrial.
7
864 P.2d 654, 657 (Ct. App. 1993) (explaining the doctrine of invited error applies to estop a party
from asserting an error when his or her own conduct induces the commission of the error).
Even considering the merits of Richardson’s contention, we do not agree that the district
court erred by failing to give a prompt curative instruction. While some appellate decisions have
used the word “promptly” in describing how a district court issued curative instructions, see, e.g.,
State v. Hedger, 115 Idaho 598, 601, 768 P.2d 1331, 1334 (1989), promptness is not a prerequisite
for the presumption that a jury followed an instruction, see State v. Saenz, 167 Idaho 443, 451, 470
P.3d 1252, 1260 (Ct. App. 2020) (holding that presumption applied even though error occurred
after district court gave jury instruction). As such, we presume that the jury followed the district
court’s instructions despite the delay between the error and the curative instruction.
Aside from the delay, Richardson presents no argument why the jury should not be
presumed to have followed the district court’s instruction. As such, we presume that the jury
disregarded the mention of Richardson’s arrest warrant except for the purpose of explaining the
officer’s actions as the district court instructed it to do. Thus, Richardson has failed to show that
the jury considered evidence of the arrest warrant in determining his guilt. Moreover, the probative
force of the error was minimal because the purpose for which the evidence was admitted had little
or no relevance to the elements of the charged crime, and there was no dispute at trial regarding
why the officer gave Miranda warnings to Richardson.6
Next, we weigh the probative force of the entire record while excluding the error. At trial,
two witnesses testified that they had reviewed a surveillance video that showed a vehicle entering
a parking lot; backing up to the victim’s boat, which was stored on a trailer; and driving away with
the boat after attaching to the trailer. This vehicle had similar identifying features to a vehicle
owned by Richardson, as shown by other portions of the surveillance footage and a photograph of
Richardson’s vehicle. Another witness testified that Richardson brought the boat to her house on
the same day, where Richardson and an accomplice started to remove the motor from the boat.
Richardson’s accomplice testified that Richardson took the boat. The accomplice also testified
6
Richardson also asserts that the curative instruction painted him as a person who
“historically breaks the law and fails to appear in court, even for minor offenses.” We disagree.
By informing the jury that the warrant was for a minor traffic offense, the district court actually
decreased the probative force of the error.
8
that he helped Richardson take the motor off of the boat to sell to another person. Finally, when
Richardson became aware that the motor was reported as stolen, Richardson took what remained
of the boat and trailer to the police department.
Richardson presented an alibi defense based on other witnesses’ testimony that Richardson
had been watching some children on the morning of the theft. The jury evidently did not find that
this defense created a reasonable doubt regarding Richardson’s guilt, and Richardson has presented
no reason why the error--allowing the jury to consider the evidence of the arrest warrant solely as
explaining the officer’s actions--negatively impacted his defense.
Weighing the probative value of the error against the probative value of the record as a
whole without the error, we conclude that the error did not have a continuing effect on the trial and
are satisfied beyond a reasonable doubt that the error did not contribute to the jury’s verdict. Thus,
there is no reversible error relating to the admission of the improper warrant evidence that would
entitle Richardson to a new trial.
B. Motion for a New Trial
Richardson moved for a new trial pursuant to I.C.R. 34. The basis for Richardson’s motion
was the district court’s denial of his motion for judgment of acquittal. The district court
characterized Richardson’s Rule 34 motion as seeking relief on the ground that the court erred in
deciding a question of law during the course of the trial, I.C. § 19-2406(5), and denied the motion.
On appeal, Richardson contends the district court abused its discretion by denying his
motion for a new trial. Specifically, Richardson argues that the district court erred because, at
trial, the district court was required to strike the officer’s testimony about the arrest warrant and
not delay issuing a curative instruction. As discussed above, Richardson failed to preserve his
argument that the district court was required to strike the testimony and promptness is not a
prerequisite for curative instructions to be effective. Thus, Richardson has failed to show that the
district court erred in denying his motion for a new trial.
C. Prosecutorial Misconduct
Richardson contends the prosecutor committed prosecutorial misconduct during closing
argument by relating a personal story about a fishing knife from his father and by mentioning the
victim’s irreplaceable loss of a knife and a tackle box. Richardson admits he did not object to this
part of the prosecutor’s closing argument, but asserts the prosecutor’s statements impermissibly
9
appealed to the passions or prejudices of the jury and amounted to fundamental error. The State
argues the prosecutor’s statements did not impermissibly appeal to the jury’s passions or prejudices
and that, even if they did, the error does not rise to fundamental error. We hold that Richardson
has failed to show fundamental error.
As Richardson admits, he made no contemporaneous objection to the prosecutor’s closing
argument at trial. Where prosecutorial misconduct was not objected to during trial, this Court may
only reverse when the misconduct constitutes fundamental error. Miller, 165 at 122, 443 P.3d at
136. In order to obtain relief under the fundamental error doctrine, the defendant must demonstrate
three things. Id. at 119, 443 P.3d at 133. First, the defendant must show that one or more of the
defendant’s unwaived constitutional rights were violated. Id. Second, the error must be clear and
obvious, which means the record must demonstrate evidence of the error and evidence as to
whether or not trial counsel made a tactical decision in failing to object. Id. Third, the defendant
must demonstrate that the error affected the defendant’s substantial rights, meaning that the error
identified in the first and second prongs of the test actually affected the outcome of the trial
proceedings. Id. at 119-20, 443 P.3d at 133-34.
In addressing the first prong of the analysis, we determine whether the statements in the
prosecutor’s closing argument violated one of Richardson’s unwaived constitutional rights.
Closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a
criminal case. State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007). Its purpose
is to enlighten the jury and to help the jurors remember and interpret the evidence. Id.; State v.
Reynolds, 120 Idaho 445, 450, 816 P.2d 1002, 1007 (Ct. App. 1991). Both sides have traditionally
been afforded considerable latitude in closing argument to the jury and are entitled to discuss fully,
from their respective standpoints, the evidence and the inferences to be drawn therefrom. State v.
Sheahan, 139 Idaho 267, 280, 77 P.3d 956, 969 (2003); Phillips, 144 Idaho at 86, 156 P.3d at 587.
While our system of criminal justice is adversarial in nature, and the prosecutor is expected to be
diligent and leave no stone unturned, the prosecutor is nevertheless expected and required to be
fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in reviewing
allegations of prosecutorial misconduct we must keep in mind the realities of trial. Id. A fair trial
is not necessarily a perfect trial. Id.10
Appeals to emotion, passion, or prejudice of the jury through the use of inflammatory
tactics are impermissible. Phillips, 144 Idaho at 87, 156 P.3d at 588; see also State v. Raudebaugh,
124 Idaho 758, 769, 864 P.2d 596, 607 (1993); State v. Pecor, 132 Idaho 359, 367, 972 P.2d 737,
745 (Ct. App. 1998). A defendant’s constitutional right to a fair trial “is violated where a
prosecutor attempts to ‘have a jury reach its decision on any factor other than the law as set forth
in the jury instructions and the evidence admitted during trial, including reasonable inferences that
may be drawn from that evidence.’” State v. Adamcik, 152 Idaho 445, 480, 272 P.3d 417, 452
(2012) (quoting State v. Perry, 150 Idaho 209, 227, 245 P.3d 961, 979 (2010)).
At the beginning of closing argument, the prosecutor stated that “there’s something that
keeps coming up in this case that kind of hits home for me.” The prosecutor related how his
grandfather had given him a fishing knife and how the knife “has all those memories and things
that go along that don’t come with even a nicer fishing knife. And every time [the victim] talks
about the fishing knife that was stolen that his father gave him, it makes me think of that.” The
prosecutor continued:
Because what was stolen in this case is more than just a boat. Insurance can
take care of a boat. But it’s all those other things that were stolen. You heard [the
victim] testify about a tackle box with 50 years of tackle that he’s collected. And
he says it every time he’s told that story to me too, and he said it when he testified,
as if this is something that everybody does, you go around and collect tackle. I’ve
never heard of somebody else doing this.
But it was important to him. It was an important memory that he created
for himself over these years. And that was just thrown away.
You heard testimony in the interview that all those items that couldn’t be
sold, oh, those are tossed.
The prosecutor concluded his argument by stating that “there are items, even trivial, if you think
that the[y] were stolen from [the victim and his wife] that they can’t replace, I’m going to ask you
to leave that in your mind for a moment.”
On appeal, the State characterizes the prosecutor’s personal story as, “at worst . . . a sappy
story” that would not arouse the passions of the jury. But whether he succeeded in arousing the
passions of the jury is not the correct standard--the standard under Adamcik is whether the
prosecutor attempted to do so. See Adamcik, 152 Idaho at 480, 272 P.3d at 452. The prosecutor
connected his personal story to the victim’s loss of sentimental items, which appears as an attempt
to have the jury sympathize with the victim.
11
The State also asserts that the prosecutor’s remarks regarding his personal story were
ambiguous and should generally not be construed against the State. See State v. Severson, 147
Idaho 694, 719, 215 P.3d 414, 439 (2009). However, the State has not explained how the
prosecutor’s personal story was ambiguous or how it could have any purpose other than to appeal
to the sympathy of the jury. Absent an ambiguity, Severson does not require the prosecutor’s
personal story to be construed in the State’s favor.
As for the prosecutor’s statements regarding the sentimental value of the knife and tackle
box, the State contends these statements were proper because the victim testified regarding the
emotional value of the items. The State is correct that both sides are entitled to discuss the evidence
presented at trial. Sheahan, 139 Idaho at 280, 77 P.3d at 969. However, a prosecutor should avoid
placing undue emphasis on irrelevant facts introduced at trial. State v. Smoot, 99 Idaho 855, 860,
590 P.2d 1001, 1006 (1978); Phillips, 144 Idaho at 86, 156 P.3d at 587. As Richardson notes, the
information did not charge him with theft of the knife or tackle box. Furthermore, the sentimental
value of the items had no relevance to the charge of grand theft. See I.C. §§ 18-2403(1),
18-2407(1)(b). By relating a personal story and bringing up the sentimental value of items
Richardson was not charged with stealing, the prosecutor emphasized irrelevant evidence as part
of his closing argument. However, the prosecutor’s closing argument, although improper, was not
so inflammatory as to rise to the level of a due process violation.
Under the second prong of the analysis, Richardson must show the record contains
evidence of the error and evidence that his counsel did not make a tactical decision to not object
to the error. See Miller, 165 Idaho at 119, 443 P.3d at 133. In determining whether the lack of an
objection by trial counsel was tactical, the court begins with the strong presumption that counsel
was competent and trial tactics were based on sound legal strategy. Saenz, 167 Idaho at 449, 470
P.3d at 1258. An assertion on appeal that counsel did not make a strategic decision is not enough
to overcome this presumption of competence. Id.; see also Miller, 165 Idaho at 119, 443 P.3d at
133. Rather, there must be actual evidence in the record that demonstrates the lack of objection
was not tactical. Saenz, 167 Idaho at 449, 470 P.3d at 1258; Miller, 165 Idaho at 119, 443 P.3d at
133.
As evident from our analysis of the first prong, there is evidence of the error in the record.
However, as the State notes, Richardson fails to provide any citation to the record to support his
12
contention that the lack of an objection was not tactical. Under Saenz, Richardson’s assertion that
“there is no way that failing to object could be interpreted as a strategic decision,” standing alone,
is not enough to satisfy this requirement because such an assertion is not evidence. Therefore,
Richardson has not met his burden under the second prong of the fundamental error analysis.
Additionally, we note the record contains evidence that Richardson’s trial counsel made a
tactical decision to not object to the prosecutor’s comments. One of Richardson’s defenses at trial
was that someone else committed the theft and that Richardson did not know the boat was stolen.
In closing argument, Richardson’s trial counsel stated:
Of course we feel sad about what happened to [the victim] and we sympathize with
him and his family that they lost their boat and somebody stole their personal items.
Nobody wants to go through that. But what we have to figure out today is who
actually stole that boat.
This response indicates that Richardson’s trial counsel made a tactical decision to not
contemporaneously object to the prosecutor’s personal story or comments regarding the
sentimental value of the knife and tackle box but, instead, responded directly by expressing a
similar idea--sympathy for the victim--during closing argument.
Richardson also fails to satisfy the third prong of the fundamental error analysis. At times,
prosecutorial misconduct during closing argument can be remedied by a district court’s instruction
to the jury that the attorneys’ arguments are not evidence. Miller, 165 Idaho at 123, 443 P.3d at
137. When assessing the impact of a remedial jury instruction “this Court presumes the jury
followed the court’s jury instructions,” id. at 124, 443 P.3d at 138, even when the error complained
of occurs after the jury receives its instructions from the trial court, see State v. Tupis, 112 Idaho
767, 773, 735 P.2d 1078, 1084 (Ct. App. 1987).
The State argues that any prejudice from the prosecutor’s comments was cured by the
district court’s instruction to the jury that arguments and statements made by counsel are not
evidence. We presume this instruction cured the prejudice stemming from the prosecutor’s
personal story about the knife he got from his grandfather, as there was no evidence of this story
presented during trial. However, this instruction would not have cured the prejudice from the
prosecutor’s comments regarding the sentimental value to the victim--as noted above, the victim
testified to the emotional impact of the knife and tackle box being stolen. The prejudice stemmed
not from the danger of arguments being confused with evidence, but from the prosecutor making
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appeals to the jury’s passions based on the evidence admitted at trial. The instruction relied on by
the State does not cure the prejudice stemming from the prosecutor’s comments on sentimental
value.
Although the jury instruction does not completely cure the prejudice, Richardson has failed
to show that the alleged error actually affected the outcome of the trial, which he must do to prevail
on the third prong of the fundamental error analysis. See Miller, 165 Idaho at 120, 443 P.3d at
134. Showing a “reasonable possibility” does not satisfy the third prong. Id. Richardson’s
argument under the third prong is limited to the following assertion: “the outcome of the trial was
likely affected by the prosecutor’s inflammatory language.” This argument is conclusory and cites
an erroneous legal standard. Thus, Richardson has not met his burden on the third prong.
Richardson has failed to show fundamental error from the prosecutor’s closing argument.
III.
CONCLUSION
Richardson has failed to show the district court erred by denying his motion for a mistrial
and his motion for a new trial. He has also failed to show the State committed prosecutorial
misconduct amounting to fundamental error. Consequently, his judgment of conviction is
affirmed.
Chief Judge HUSKEY and Judge GRATTON, CONCUR.
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