State v. Alwin

• Decision Date: 21 September 2018
• Docket Number: Docket No. 45743
• Citation: 426 P.3d 1260,164 Idaho 160
• Court: Idaho Supreme Court
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Jeffrey Lynn ALWIN, Defendant-Appellant.

164 Idaho 160

426 P.3d 1260

STATE of Idaho, Plaintiff-Respondent,

v.Jeffrey Lynn ALWIN, Defendant-Appellant.

Docket No. 45743

Supreme Court of Idaho, Boise, August 2018 Term.

Filed: September 21, 2018

Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Sally J. Cooley, Deputy Appellant Public Defender argued.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Mark W. Olson, Deputy Attorney General argued.

BURDICK, Chief Justice.

Jeffrey Lynn Alwin appealed his judgment of conviction entered in the Kootenai County district court. A jury found Alwin guilty of felony eluding a peace officer. Alwin moved for a new trial, challenging the district court's admission of a booking photograph at trial. Alwin argued the booking photograph was evidence of prior criminal conduct in violation of Idaho Rule of Evidence ("I.R.E.") 404(b). The district court denied his motion. Alwin timely appealed and contended the district court abused its discretion in denying his motion for a new trial because the district court erroneously admitted I.R.E. 404(b) evidence over his objection when it admitted the booking photograph at trial. Alwin also argued the State committed prosecutorial misconduct during closing arguments. The Court of Appeals reversed, and the State filed a timely Petition for Review. For reasons discussed below, we affirm the district court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 3, 2015, Officer Cody Cohen of the Coeur d'Alene Police Department was clearing a traffic stop when he observed a black Mercedes-Benz drive past that was rapidly accelerating. Officer Cohen returned to his patrol vehicle and followed the Mercedes. Officer Cohen then initiated a traffic stop. The Mercedes pulled over and Officer Cohen approached the driver's window that was rolled about half-way down. Through this opening, Officer Cohen observed the sole occupant of the vehicle. He described the occupant as a white male with brown hair, about six feet in height with a muscular build. Officer Cohen also detected the odor of alcohol and that the male was avoiding eye contact. When Officer Cohen requested the male's driver's license, registration, and insurance information, the male responded with a slurred, incoherent response. At that time, the male reached across the vehicle to the glove box, returned his hand from the glove box empty, placed his hand on the shifter, and drove away. A multi-officer pursuit ensued but was ultimately disengaged.

Officer Cohen called and provided the license plate number to dispatch approximately fifteen minutes after the vehicle fled the initial traffic stop. It was then discovered the vehicle was registered to Jeffery Lynn Alwin. At that time, Officer Cohen pulled a photograph of Alwin from the computer system. Officer Cohen confirmed the photograph of Alwin matched the male he had stopped earlier. Based on this information, a warrant was issued for Alwin's arrest. Alwin voluntarily turned himself in.

The main issue at trial revolved around Officer Cohen's identification of Alwin. In support of Officer Cohen's testimony, the State offered as evidence the photo Officer Cohen viewed the night of the traffic stop. Alwin objected under I.R.E. 404(b). No further explanation accompanied the objection. The State responded, arguing the objection was improper because no conduct was being alleged by the photo. The district court agreed, overruled the objection, and the photo was admitted into evidence.

The jury found Alwin guilty of felony eluding a peace officer. Alwin moved for a new trial arguing that the district court "erred in deciding it was permissible to expose the jury to [Alwin]’s prior booking photo." The district court denied the motion. Alwin timely appealed and alleged the district court erroneously admitted I.R.E. 404(b) evidence and the district court's denial of Alwin's motion for a new trial was error. Alwin also alleged the State committed prosecutorial misconduct during closing arguments. The Court of Appeals reversed the district court's judgment, and the State timely filed a Petition for Review.

II. ISSUES ON APPEAL

1. Whether the district court's denial of Alwin's motion for a new trial was an abuse of discretion.

2. Whether the prosecutor committed misconduct during closing argument that amounted to fundamental error.

III. STANDARD OF REVIEW

This Court reviews a district court's denial of a motion for a new trial under an abuse of discretion standard. State v. Lankford , 162 Idaho 477, 491, 399 P.3d 804, 818 (2017) (quoting State v. Stevens , 146 Idaho 139, 144, 191 P.3d 217, 222 (2008) ). Similarly, a district court's determination that evidence is admissible under I.R.E. 404(b) is reviewed for an abuse of discretion. State v. Rawlings , 159 Idaho 498, 504, 363 P.3d 339, 345 (2015) (citing State v. Pepcorn , 152 Idaho 678, 690–91, 273 P.3d 1271, 1283–84 (2012) ). "To determine whether a trial court has abused its discretion, this Court considers whether it correctly perceived the issue as discretionary, whether it acted within the boundaries of its discretion and consistently with applicable legal standards, and whether it reached its decision by an exercise of reason." Id . (quoting Reed v. Reed , 137 Idaho 53, 57, 44 P.3d 1108, 1112 (2002) ).

"Where prosecutorial misconduct was not objected to at trial, [this Court] may only order a reversal when the defendant demonstrates that the violation in question qualifies as fundamental error[.]" State v. Perry , 150 Idaho 209, 227, 245 P.3d 961, 979 (2010). Showing fundamental error requires the following:

(1) the defendant must demonstrate that one or more of the defendant's unwaived constitutional rights were violated; (2) the error must be clear or obvious, without the need for any additional information not contained in the appellate record, including information as to whether the failure to object was a tactical decision; and (3) the defendant must demonstrate that the error affected the defendant's substantial rights, meaning (in most instances) that it must have affected the outcome of the trial proceedings.

Id . at 226, 245 P.3d at 978 (citation omitted). The burden of showing fundamental error is placed on the defendant. Id . If the burden is satisfied, this Court must vacate and remand. Id . at 227, 245 P.3d at 979.

IV. ANALYSIS

A. The district court did not abuse its discretion in denying Alwin's motion for a new trial.

At trial, a prior booking photo of Alwin was offered into evidence by the State. According to Alwin, the booking photo displays Alwin standing, unsmilingly, in front of a blank wall, dressed in yellow "jail garb," and it is apparent Alwin has a black eye. The introduction of the photo was accompanied by Officer Cohen's testimony that he had viewed the photo from a computer system in his patrol vehicle. When asked by the district court whether the defense had any objections to the introduction of the booking photo, Alwin's counsel simply stated: "[w]e would object under 404(b)." The State responded: "[n]o, I don't think it is 404(b) ... [t]here is no conduct being alleged." The district court agreed with the State and admitted the booking photo. Alwin moved for a new trial, pursuant to Idaho Criminal Rule 34, alleging the district court erred in admitting the photo into evidence. The district court denied the motion, stating "if the request had been made to redact the clothing from the photo, since there would be no harm in doing that, I probably would have ordered it. ... But I don't think it's required, and so I am going to deny the motion." On appeal, Alwin argues the motion for a new trial should have been granted because the district court "committed an error of law in not realizing that the booking photo was evidence of a prior bad act and, thus, failing to recognize that analysis under I.R.E. 404(b) was required." For the reasons to be discussed, the district court did not erroneously admit the booking photo because the photo did not constitute I.R.E. 404(b) evidence. Because the photo did not constitute I.R.E. 404(b) evidence, the district court's denial of Alwin's motion for a new trial was not erroneous.

The Idaho Rules of Evidence applicable at the time of Alwin's trial¹ provided that, "[a]ll relevant evidence is admissible except as otherwise provided by these rules or by other rules applicable in the courts of this state. Evidence which is not relevant is not admissible." I.R.E. 402. Evidence is relevant if the evidence has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than [the fact] would be without the evidence." I.R.E. 401. However, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith." I.R.E. 404(b). But such evidence may be admissible for other permitted purposes such as proving "motive, opportunity, intent, preparation, plan, knowledge, identity , or absence of mistake or accident[.]" Id . (emphasis added). If propensity evidence is offered for one of the above listed purposes, "the prosecution in a criminal case shall file and serve notice reasonably in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." Id .

Mugshots are generally inadmissible under I.R.E. 404(b) because mugshots are indicative of a prior crime, wrong, or other bad act. See State v. Cunningham , 97 Idaho 650, 653, 551 P.2d 605, 608 (1976). Mugshots are indicative of a prior crime, wrong, or other bad act because mugshots contain indicia typically associated with criminal activity. See id . ; Barnes v. United States , 365 F.2d 509, 510–11 (D.C. Cir. 1966), (noting "[t]he double-shot picture, with front and profile shots alongside each other, is so familiar ... that the...