State v. Alvarez

• Decision Date: 28 January 2003
• Docket Number: No. 26666.,26666.
• Citation: 138 Idaho 747,69 P.3d 167
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Rojelio ALVAREZ, Defendant-Appellant.
• Court: Idaho Court of Appeals

69 P.3d 167

138 Idaho 747

STATE of Idaho, Plaintiff-Respondent, v. Rojelio ALVAREZ, Defendant-Appellant.

No. 26666.

Court of Appeals of Idaho.

January 28, 2003.

Review Denied May 16, 2003.

Molly J. Huskey, State Appellate Public Defender; Julie Dawn Reading, Deputy Appellate Public Defender, Boise, for appellant. Julie Dawn Reading argued.

Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

PERRY, Judge.

Rojelio Alvarez appeals from his judgment of conviction and sentence for felony domestic battery in the presence of a child and from an order of the district court denying his I.C.R. 35 motion for reduction of sentence. We affirm.

I. FACTS AND PROCEDURE

Alvarez lived with his girlfriend and her two children. One afternoon, while Alvarez was in the bathroom, Alvarez's girlfriend asked him to give her a pack of cigarettes that were located in the bathroom. Alvarez threw them into the hall. Believing that an argument was forthcoming due to the manner in which Alvarez threw the pack of cigarettes, the girlfriend retrieved her car keys and prepared to leave the home. Alvarez came out of the bathroom and his girlfriend retreated to the bedroom, informing Alvarez that she intended to leave. Alvarez followed her and attempted to grab the car keys out of her hand. He also began swinging at his girlfriend in an attempt to hit her. She responded by kicking at Alvarez, who then began punching his girlfriend on her legs, back, and in the face. Alvarez forced his hands over his girlfriend's mouth and nose in an effort to stop her screaming, which resulted in her nose being fractured. At some point during the altercation, one of the girlfriend's children came into the bedroom and told Alvarez to leave the girlfriend alone. A short time later, the police were called concerning the disturbance, and Alvarez left the home in the girlfriend's vehicle. The girlfriend was taken to the hospital and an ensuing examination revealed that she had sustained multiple injuries.

Alvarez was subsequently arrested and charged with felony domestic battery in the presence of a child. I.C. § 18-918. After a trial, a jury found Alvarez guilty. Alvarez was sentenced to a unified term of fifteen years, with a minimum period of confinement of five years. Thereafter, Alvarez filed a motion for new trial and a Rule 35 motion, both of which were denied. Alvarez appeals.

II. ANALYSIS

A. Jailhouse Clothing

On the first day of trial, the district court noted for the record that Alvarez was wearing jailhouse clothing. The district court then questioned the court marshal concerning Alvarez's attire, and the marshal stated that he had called the jail and inquired if anyone had brought civilian clothing to Alvarez. The officer at the jail responded that no clothing had been received. The marshal requested that the officer obtain the clothing that Alvarez had been arrested in and allow Alvarez to wear those clothes to trial. The officer advised that Alvarez had released that clothing to someone and, therefore, no civilian clothing was available for Alvarez to wear to trial. The district court also noted for the record that, previously that morning, Alvarez had requested a brief delay of the start of trial in order to obtain civilian clothing to wear during the proceedings. The district court related that it had denied Alvarez's request, stating that it refused to delay the start of trial when Alvarez had had sufficient time prior to trial to obtain the civilian clothing. Alvarez's first contention on appeal is that his right to a fair trial was violated when the district court forced him to proceed through trial dressed in jailhouse clothing.

The right to a fair trial is a fundamental right guaranteed by the Fourteenth Amendment. State v. Miller, 131 Idaho 288, 293, 955 P.2d 603, 608 (Ct.App.1997). The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice. Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126, 130 (1976); State v. Crawford, 99 Idaho 87, 95, 577 P.2d 1135, 1143 (1978); Miller, 131 Idaho at 293, 955 P.2d at 608. In conducting a criminal trial, a court must carefully guard against dilution of the principle that guilt is to be established by probative evidence beyond a reasonable doubt. Miller, 131 Idaho at 293, 955 P.2d at 608.

Consequently, a state cannot, consistent with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes. Estelle, 425 U.S. at 512, 96 S.Ct. at 1696-97, 48 L.Ed.2d at 135. Such compulsion is impermissible because of the possible impairment of the presumption of innocence so basic to the adversary system. See Estelle, 425 U.S. at 504, 96 S.Ct. at 1693, 48 L.Ed.2d at 130. See also State v. Slater, 136 Idaho 293, 301, 32 P.3d 685, 693 (Ct.App.2001). The particular evil proscribed is compelling a defendant, against his or her will, to be tried in jail attire. Estelle, 425 U.S. at 507, 96 S.Ct. at 1694, 48 L.Ed.2d at 132. In order to establish the presence of compulsion, a defendant is required to object to being tried in jail garments. Id. at 512, 96 S.Ct. at 1696-97, 48 L.Ed.2d at 135. The failure to make an objection to the trial court to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation. Id. at 512-13, 96 S.Ct. at 1696-97, 48 L.Ed.2d at 135. Any error in forcing a defendant to wear identifiable jailhouse clothing during trial is subject to a harmless error analysis. See id. at 506-07, 96 S.Ct. at 1694, 48 L.Ed.2d at 131-32. In the present case, Alvarez did not expressly object to being tried in jailhouse clothing. Rather, the record reveals that Alvarez made an informal, off-the-record request on the first day of trial for a brief delay in the start of trial to obtain civilian clothing. When the district court noted for the record that it had denied Alvarez's request for a delay in the start of trial to obtain civilian clothing, Alvarez did not thereafter object to the district court's denial of his request or to being tried in jailhouse garments. An informal request to delay the start of trial to obtain civilian clothing is insufficient to constitute an objection to being tried in jailhouse attire. See United States v. Rogers, 769 F.2d 1418, 1421-23 (9th Cir.1985). Alvarez's informal request for a delay in order to obtain civilian clothing was insufficient to put the district court on notice that Alvarez was asserting a violation of his constitutional right to a fair trial. Thus, we conclude that Alvarez has failed to demonstrate that he was compelled to stand trial in identifiable jailhouse attire and, therefore, no violation of Alvarez's constitutional right to a fair trial has been shown.

B. Variance

The information charging Alvarez with felony domestic battery in the presence of a child alleged that Alvarez inflicted a traumatic injury upon his girlfriend by "kicking and striking her resulting in a broken nose and other injuries" in the presence of a child. At trial, the jury was instructed that traumatic injury was defined as "a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by physical force." The instruction given to the jury did not limit the jury's consideration of traumatic injury to the injuries specified in the information.

On appeal, Alvarez asserts that, despite the information limiting the victim's traumatic injury to a broken nose and other injuries, the jury instruction at issue permitted the jury to find any injury sufficient even if the jury did not find that Alvarez broke the victim's nose. Alvarez argues that the jury instruction thus varied from the information, depriving him of his rights to fair notice and due process of law. The state contends that Alvarez failed to preserve the issue of variance for appellate review because he did not raise it below. We are not persuaded by the state's argument. In a recent opinion, this Court held that a defendant is not precluded from presenting the issue of variance between the charging information and a challenged jury instruction for the first time on appeal on the ground that errors in the instructions given to the jury may be raised for the first time on appeal. See State v. Hoffman, 137 Idaho 897, 901, 55 P.3d 890, 894 (Ct.App.2002). Therefore, we will address the merits of Alvarez's claim.

The existence of an impermissible variance between a charging instrument and the jury instructions is a question of law over which we exercise free review. State v. Sherrod, 131 Idaho 56, 57, 951 P.2d 1283, 1284 (Ct.App.1998). Our task in resolving the issue presented is two-fold. First, we must determine whether there is a variance between the information used to charge Alvarez with felony domestic battery in the presence of a child and the instructions presented to the jury. See State v. Brazil, 136 Idaho 327, 329, 33 P.3d 218, 220 (Ct.App.2001). Second, if a variance exists, we must examine whether it rises to the level of prejudicial error requiring reversal of the conviction. Id.

Here, the information specifically alleged that Alvarez inflicted traumatic injury on the victim by breaking her nose and causing other injuries. The information did not limit the injury that was alleged to constitute traumatic injury to the victim's broken nose. Rather, the information provided that there were other injuries comprising the traumatic injury inflicted upon the victim. There was evidence adduced at trial that, in addition to sustaining a fractured nose, Alvarez's girlfriend suffered cuts, scratches, and bruises to multiple areas of her body as a result of Alvarez's attack. Thus, even if the state failed to convince the jury...