State v. Bernal

• Decision Date: 14 September 2018
• Docket Number: Docket No. 44556
• Citation: 427 P.3d 1,164 Idaho 190
• Court: Idaho Supreme Court
• Parties: STATE of Idaho, Plaintiff-Respondent, v. John Jacob BERNAL, Defendant-Appellant.

164 Idaho 190
427 P.3d 1

STATE of Idaho, Plaintiff-Respondent,
v.
John Jacob BERNAL, Defendant-Appellant.

Docket No. 44556

Supreme Court of Idaho, Boise, May 2018 Term.

Filed: September 14, 2018

Eric D. Fredericksen, State Appellate Public Defender, for Appellant. Sally Jane Cooley argued.

Hon. Lawrence G. Wasden, Attorney General, for respondent. Theodore Steven Tollefson argued.

BEVAN, Justice

164 Idaho 192

John Jacob Bernal appeals his judgment of conviction. Bernal argues a fatal variance between the charging document and two jury instructions denied him due process amounting to fundamental error. Bernal also contends two instances of prosecutorial misconduct amounted to fundamental error. We affirm the district court's judgment of conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

Carmen Becerra and Bernal dated for approximately eight years. By March 2016, their relationship was strained. One afternoon, Carmen was visiting her cousin's house in Meridian. Bernal showed up and asked her if they could talk. Carmen agreed to meet Bernal at his aunt's house in Boise. Carmen left her cousin's house in an SUV; Bernal left in a blue Buick. On their way to Boise, both Carmen and Bernal drove down Five Mile Road until they were stopped by road construction. While they were stopped, Bernal got out of his vehicle and walked toward Carmen, who was stopped behind him. Carmen testified Bernal looked angry, so she turned onto a side street to avoid a confrontation.

Carmen testified she was driving fast so she could get away from Bernal, but he got back into his vehicle and followed her. She stated she was scared because Bernal was "tailing her." She continued driving through various side streets to avoid Bernal, and when she turned onto Granger Avenue, she sped up. Carmen testified that Bernal was matching her speed. While Bernal was following Carmen, she was on the phone with her brother, Gustavo Becerra. Gustavo testified that he could hear screaming, speeding, braking, commotion, and then Carmen abruptly hung up.

While on Granger Avenue, Carmen hit her brakes, causing Bernal to lose control, spin out, and crash into a parked vehicle. The owner of the parked vehicle, Mr. Le, testified he saw a blue Buick hit his vehicle, but could not positively identify the driver. After the collision, Carmen waited to see if Bernal was okay. After Bernal exited his vehicle, Carmen drove to her home where she lived with her mother, Gustavo, and Gustavo's family. Gustavo, who was not at home at the time, drove to their house where he met Carmen and let her inside.

Gustavo testified when he was a few blocks from his house, he saw Bernal "very fast-paced, walking, look[ing] determined, with his hands in his pocket" heading toward the house. Gustavo stated he was worried about his family, especially his wife and son, so when he got home, he grabbed a baseball bat, stepped outside, placed the bat against the side of the house, and waited for Bernal to arrive. Almost immediately, Bernal arrived on foot. As Bernal was approaching the house, Gustavo told Bernal to leave. As Bernal got closer, Gustavo testified that he saw Bernal's hand in his pocket and that "he had ahold of something" as he was walking toward him. When Bernal made it halfway through the yard, Gustavo, who was still on the porch, picked up his baseball bat.

After seeing the knife, Gustavo testified he hit Bernal in the left leg with the bat. After he was hit, Bernal took a step back, extended the blade of his knife, and assumed an aggressive posture. Gustavo stated that when he saw the knife he backed up and told Bernal to leave. Bernal then asked for a ride,

427 P.3d 4

164 Idaho 193

started walking toward the front door, and lunged at Gustavo when he stepped in his way. Gustavo again hit Bernal with the bat, this time in the ribs. Gustavo testified that Bernal backed up and told him, "I'll be back," "I'm gonna catch you sleeping," and then "I'm gonna F you up." According to Gustavo, Bernal kept making threats as he walked away. Gustavo followed Bernal to escort him off the property. Gustavo stated Bernal made his way into the street, then "whipped the knife out of his pocket," turned around, and lunged at him. Gustavo backed up to dodge the knife and stayed in his yard as Bernal made additional threats, turned around, and slowly walked away. Gustavo testified that the knife missed his face by only three to four inches. In addition to Gustavo's testimony regarding the assault, Carmen testified that she saw Bernal lunge toward Gustavo and saw Gustavo hit Bernal with the bat.

Bernal was charged by information with three crimes: aggravated assault with a deadly weapon, Idaho Code sections 18-901(a) and 18-905(a) ; reckless driving, Idaho Code section 49-1401 ; and leaving the scene of an accident, Idaho Code section 49-1301. The State also charged a sentencing enhancement under Idaho Code section 19-2520 as a separate count in the information.¹ At the close of evidence at trial, Bernal did not object to the proposed jury instructions. During closing arguments, Bernal argued he did not have a knife, that Gustavo was not a credible witness, and that Gustavo was the aggressor. He also argued that Mr. Le did not identify him as the driver and "[w]e don't really know whose car, if any, Mr. Bernal hit." Additionally, Bernal argued Carmen credibly testified, contrary to her previous statement to the police, that she did not see Bernal with a knife.

The jury found Bernal guilty on all counts, including the sentencing enhancement, and the district court entered judgment. Bernal timely filed a notice of appeal.

II. STANDARD OF REVIEW

"Where a defendant alleges that a constitutional error occurred at trial, we must first determine whether a contemporaneous objection was made." State v. Hall , 163 Idaho 744, 766, 419 P.3d 1042, 1064 (2018) (citing State v. Perry , 150 Idaho 209, 245 P.3d 961 (2010) ). If the alleged error was not followed by a contemporaneous objection, it must be reviewed under the fundamental error doctrine. Perry , 150 Idaho at 228, 245 P.3d at 980. In order to obtain relief under the fundamental error doctrine, a defendant must demonstrate: (1) "one or more of the defendant's unwaived constitutional rights were violated"; (2) the constitutional error is "clear or obvious" on the record "without the need for any additional information," including information "as to whether the failure to object was a tactical decision"; and (3) "the error affected the defendant's substantial rights," by showing a reasonable possibility that the error "affected the outcome of the trial court proceedings." Id. at 226, 245 P.3d at 978.

III. ISSUES ON APPEAL

1. Whether there were fatal variances between the information and the district court's jury instructions.

427 P.3d 5

164 Idaho 194

2. Whether the State committed prosecutorial misconduct during closing arguments.

IV. ANALYSIS

A. The variances between the information and the jury instructions do not amount to fundamental error.

Jury instructions should match the allegations in the charging document as to the means by which a defendant is alleged to have committed the charged crime. State v. Hooper , 145 Idaho 139, 146–47, 176 P.3d 911, 918–19 (2007). Failure to do so creates a variance. State v. Folk , 151 Idaho 327, 342, 256 P.3d 735, 750 (2011). A variance becomes fatal when it violates due process. See State v. Cariaga , 95 Idaho 900, 904, 523 P.2d 32, 36 (1974) ; De Jonge v. Oregon , 299 U.S. 353, 362, 57 S.Ct. 255, 81 L.Ed. 278 (1937). In other words, it "depends on whether or not the basic functions of the [notice] pleading requirement have been met." State v. Windsor , 110 Idaho 410, 417, 716 P.2d 1182, 1189 (1985). As the United States Supreme Court stated:

The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.

Berger v. United States , 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) (citations omitted).

Applying this standard presents a two-step process. State v. Gas , 161 Idaho 588, 592, 388 P.3d 912, 916 (Ct. App. 2016). First, the appellate court determines whether there was a variance between the information used to charge the crime and the instruction presented to the jury. Id. Second, if a variance does exist, then the court examines whether it rises to the level of prejudicial error requiring reversal of the conviction, i.e., whether it is fatal. Id. "A variance between a charging instrument and a jury instruction necessitates reversal only when it deprives the defendant of the right to fair notice or leaves him or her open to the risk of double jeopardy."² Id. The notice element requires this Court...